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Cancer Patients vs. the Attorney General

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I don't meet a lot of kids in my line of work. As a public interest attorney, I spend most of my time with adults like would-be taxi drivers, tour guides, and small-business owners of every stripe who are menaced by government red tape. I think that's one of the reasons Arya Majumder sticks out so much for me. Arya, who was fascinated by magic tricks. Arya, who was so effortlessly charming that, left to his own devices, he'd find himself surrounded by a crowd of other kids within minutes, telling them jokes or showing them card tricks. Arya, who is dead.

Arya was only eleven-years-old when he died of leukemia in April of 2010, waiting to find a matching bone marrow donor. Arya's brave struggle with cancer is actually how we met: through my work at the Institute for Justice, I represent his father, Kumud Majumder, who, alongside other families, cancer patients, a California nonprofit and a world renowned transplant surgeon, is suing Attorney General Eric Holder to strike down the part of a federal law that prohibits compensating bone marrow donors.

You see, in general, federal law makes it illegal to pay people for their organs -- you can't sell a kidney or any other nonrenewable organs. But it's perfectly legal to pay people for renewable cells -- people routinely get paid to donate plasma, for instance, or sperm or ova. The only exception to the rule is bone marrow. Donating bone marrow is perfectly safe, and bone marrow is entirely renewable -- donated marrow cells regenerate within a matter of weeks. But federal law treats giving a college scholarship to a bone marrow donor the same way it treats black market organ sales, and everyone -- doctors, nurses, even patients -- could end up in federal prison for up to five years.

The reason for this disparity, as far as we've been able to tell, is that Congress simply made a mistake. When it passed the National Organ Transplant Act (the law that makes it illegal to sell organs), it included "bone marrow" in the definition of "organ." But that's just wrong. Bone marrow isn't an organ; it's just a collection of renewable loose cells, like blood. In fact, marrow cells are what make your blood -- the best way to think of bone marrow is just as immature blood cells, and a so-called "bone marrow transplant" is really just another kind of blood transfusion. Donating marrow cells is painless and, in most cases, marrow is donated using the same technique that is used for plasma or platelet donors. So someone who gives a college student $3,000 to incentivize plasma donation is a hero. And someone who gives that same student $3,000 to incentivize marrow donation through the same method is a felon.

This makes no sense.

Congress can't criminalize things arbitrarily -- and it certainly can't turn people into felons on the basis of a simple factual mistake, like treating bone marrow as if it were a solid organ like a kidney.

That is why courts play such a vital role in our system of government: Judges can't simply give Congress a pass. Instead, they must be engaged and ensure that acts of Congress do not stray beyond the bounds of the Constitution.

And that is exactly what we will be arguing on Tuesday, February 15, in front of the Ninth U.S. Circuit Court of Appeals in Pasadena. Especially when the stakes are so high -- quite literally life or death -- every branch of government has an independent duty to make sure the law is getting it right before sentencing someone to prison for trying to save a life.

Somebody else like Arya is going to die today -- and somebody else tomorrow. As many as 3,000 people could die this year waiting for a matching marrow donor. Trying to save them by offering creative incentives shouldn't be a crime -- and, if the federal courts are fully engaged with our lawsuit, soon it won't be.


Robert McNamara is an attorney with the Institute for Justice. For more information on the Institute for Justice's Center for Judicial Engagement, visit www.ij.org/CJE. For more information on IJ's litigation to allow compensation for bone marrow donors, visit www.ij.org/BoneMarrow.

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