For starters, I admit that I am writing on a tabula distant from my comfort zone. Perhaps the fact that my law practice doesn't implicate medical ethics and policy accords me greater freedom to opine about this.
Bone marrow transplants to treat leukemia are affecting more Americans than ever before. Not to be maudlin, but each of us will likely end up at Memorial Sloan-Kettering Hospital or its ilk one way or another -- as a visitor, but perhaps more ominously.
The issue is this: unlike the donor of a body part such as a kidney, may a recipient or benefactor of bone marrow legally pay the donor who "contributes" to the very life of the recipient, just as one may pay a blood, sperm or egg donor? A three-judge panel of the Ninth Circuit Court of Appeals in its December 1, 2011 opinion (Flynn v. Holder, 665 F. 3d 1048 (Ninth Cir., 2011) says "yes." However, the Justice Department, in its pending en banc petition asking the Ninth Circuit to reverse the panel's decision, argues "no" -- nothing that the 1984 National Organ Transplant Act actually makes it a felony for cash or its equivalent to be exchanged for an organ, defined to include "bone marrow."
Forget about the law (odd for a lawyer to suggest): But what would John Q. Citizen, lawyer or not, say? Difficult. For some, the answer will depend on one crucial biological fact. Meaning, according to the experts, bone marrow regenerates freely, just as do blood, sperm and eggs. A donor can safely contribute marrow today, and then soon again, thereby potentially benefitting yet another recipient. Others will say that to allow payment for this unique procedure will simply begin the trajectory down the slippery slope toward what, most would agree, shouldbe illegal. As they would put it, to allow organ recipients to pay for transplant parts will invariably encourage the economic underclass, who always suffer tough financial times, to literally forfeit non-regenerative parts of themselves for cash, pure and simple. More directly: do we, as a society, want healthy (or even unhealthy) people to "sell" their kidneys or lungs to pay the rent and food bills? Some, likely libertarians (small "l"), will simply urge the government to mind its own business -- if someone wants the cash badly enough and isn't hurting anybody else, he should be allowed to sacrifice his own quality of life, period!
The Ninth Circuit went into exquisite detail to show the distance that bone marrow science has travelled. At one point, bone marrow transplants could only be accomplished by "aspiration" -- inserting into the donor's hip a long, painful needle, thick enough to suck out the soft, fatty marrow. But no longer is aspiration the only available procedure.
Now, a protocol known as "apheresis" can be used. In it, the "marrow" substance doesn't come from a bone at all - at least, not directly. The would-be donor, instead, essentially makes a blood donation. The donated blood, in which the marrow ingredient (more technically, hematopoietic stem cells from which white blood cells, red blood cells and platelets grow) is contained, fills up a plastic bag in much the same way as a typical blood transfusion.
Somewhat differently, however, under apheresis, the donor sits for a few hours in a recliner while the donated blood passes through a machine that filters out the needed stem cells which originated in the marrow. The remaining blood components are returned to the donor's vein, and are actually replaced by the donor's bone marrow in three to six weeks. No invasive needle extracts the marrow from the bone, and so no "organ" -- bone marrow -- is extracted from the body.
Granted, the decision's analysis is far more technical -- but you get the picture. And because the Court was able to decide based on the biological realities of apheresis, that it is basically a blood donation and therefore not criminalized by the National Organ Transplant Act, it didn't need to directly decide the plaintiffs' principal argument. Meaning, prohibiting cash payment for an apheresisdonation would have denied "equal protection of the law " -- yes for blood, sperm and egg donations, but no for apheresis "bone marrow" donations. (By the way, payment for bone marrow transplants accomplished by aspiration remains forbidden under the Organ Transplant Act, according to the decision).
Still, what is the policy issue? Why has the Wall Street Journal editorial page, hardly a bosom buddy of the Ninth Circuit, weighed in to vigorously support the Flynn decision, joining -- as it says -- a strange bedfellow to rage against the Holder Justice Department's decision to try to reverse the panel? In their words, Caucasian donors find "marrow" matches 75% of the time, but African-Americans only 25%. Put simply, African-Americans, because of their complex lineage, need more help finding matches (as do Hispanics, who find matches only 50% of the time).
So, the Journal argues, why would the Justice Department want to deny the needed incentive that these minorities would gain from programs such as those supported by a libertarian organization called "Institute For Justice," which brought the suit on behalf of plaintiffs that include parents of children requiring bone marrow transplants? For, under program it advocated for, donors -- who might not otherwise make a marrow donation (3000 patients die annually for lack of a match) -- could receive a scholarship, a housing remuneration or a donation to the charity of their choice. The idea behind the program would be for potential donors to sign up, stay in touch, so they could be located when necessary, and proceed with donations.
Yes, it does seem wrong for a donor to be paid for a body part, although perhaps someday science will theoretically be able to accomplish regeneration for body part donors as well, and law and medical ethics might move away from their current view. But, for now, the apheresis marrow donor -- just like the traditional blood donor -- really gives up precious little. Maybe even nothing. That's not a slippery slope in progress, any more than the law having allowed payments for blood donations resulted in one.
One can readily understand the Justice Department's stated concern about allowing the evil of "market forces" to undermine efforts to encourage voluntary (uncompensated) marrow donations. True, in a perfect world, donors would "voluntarily" step up and give "of themselves" just because it's the right thing to do. Until that day arrives, however, shouldn't the Justice Department simply stay out of it as long as no one is physically hurt in any way when they do the right thing -- but need a little (cash) encouragement to get there?
The Social Contract's "aspiration" that altruism alone will compel good deeds must sometimes yield to the practical reality that morality sometimes needs a boost along the way.
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