The law has long made selling bone marrow a crime, despite the pleas of cancer patients, and others, who need bone marrow transplants. But this month, a powerful court in California changed the rules — at least in part of the country — declaring that a federal law that bars buying and selling bodily organs but not fluids such as blood or semen does not apply to bone marrow. The ruling has been widely hailed, especially since advances in extracting bone marrow make the procedure not all that different from donating blood. But buried in the case is a more difficult question: what if the ruling helps erode the broader prohibition on selling body parts? Would that be a good thing?
The California case is really a battle over the National Organ Transplant Act, a federal ban on paying people for body parts, which expressly includes “bone marrow.” A group of parents of children with diseases like leukemia, who could die if without bone marrow transplants, filed a lawsuit challenging the ban. Joining them was a transplant doctor, who said at least one in five of his patients who need bone marrow die because a match cannot be found.
Bone marrow is much harder to match than blood; if the donor and recipient are not genetically similar enough, there is a good chance the donation will be rejected. A federally funded National Marrow Donor Program helps with the matching, but it is not always successful. Mixed-race people, including many African-Americans — whose genes may be a combination of African, Caucasian, and Native-Americans — have particular trouble. A California non-profit, MoreMarrowDonors.org, which wants to offer $3,000 in scholarships, housing allowances, and other incentives to people who donate the hardest-to-find kinds of bone marrow, also signed on to the lawsuit.
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The San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled that payment for bone marrow should be allowed. But rather than strike down the whole statute as unconstitutional, as the plaintiffs wanted, the court ruled that bone marrow transplants today are not what they were when the law was written in 1984. In the old method, long needles were stuck into the hipbones of anesthetized donors, and bone marrow was taken out. Now, bone marrow can be retrieved from a person’s vein, much the way blood is. In this process, the soft, fatty marrow is not extracted – there is no need for it – only the stem cells outside the marrow. Properly read, the court said, the National Organ Transplant Act does not ban bone marrow transplants done through this modern process.
The Ninth Circuit’s ruling only applies in nine of the 50 states. But its impact could be broader, if other federal appeals courts around the country follow its logic. On the other hand, the federal government could try to get the ruling reversed in the Supreme Court. The court did a smart thing by making its decision narrow. If it had had struck down the whole law, there could have been a race on to start buying and selling organs before Congress could enact a better law. But that is unlikely to happen now, since the logic of the court’s ruling only applies to bone marrow cells.
Or does it? Critics worry that it could lead to a slippery slope in which Congress or the courts begin to legalize compensating people for other body parts. It could start with parts of organs like livers, which have cells that regenerate, and move on from there. Sally Satel M.D., a leading advocate of allowing organ donors to be compensated and herself a recipient of a donated kidney, hailed the appeals court’s decision as having “broad implications for transplant policy in general because it underscores the profound weakness in our altruism-only transplant policy.” The momentum could well extend, she argues, to kidneys, livers, hearts, and lungs.
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There is strong argument for allowing organs of all kinds to be sold. Some organs are commonly given by living donors, such as kidneys and livers. If a market were created in them, there would be many more donations of badly needed organs and untold thousands of lives would be saved. But there is also a case against allowing such a market – or two cases. Morally, many people believe that it is wrong to allow human body parts to be turned into commodities. It debases humankind, they argue, in much the same way that cannibalism or defiling dead bodies does. More practically, it is not clear that we want to create financial incentives for people to give up parts of their bodies. Poor people could be coerced to sell organs to feed their families. Even worse: it could create a market for stolen organs — taken from living people — something that exists already in other parts of the world.
Given these competing concerns, the court of appeals seems to have gotten this case right as a matter of policy, as well as law. Creating greater incentives for people to donate body parts to those who would die without them seems like the only compassionate thing to do. Proceeding cautiously in lifting the limitations seems like the only prudent thing to do.