Thoughts on Bone Marrow Selling

Is selling bone marrow sensible or exploitative? A recent panel at the Cato Institute debated the issue.
03/23/2010 05:12 am ET Updated May 25, 2011

Although, I am a committed progressive, on Tuesday I watched an engaging discussion at the Cato Institute, a libertarian think tank. What follows is a summary along with a few thoughts of my own.

The discussion concerned the legalization of bone-marrow selling. All of the panelists supported this. Bioethicist James Childress, however, took a more nuanced view by not simply relying on the libertarian argument that people should be allowed to do whatever they want with their bodies. He felt that bone-marrow is a categorically different type of body part since it is renewable like blood. Of course, it is legal to sell your blood, even though it is rarely done. The selling of blood plasma, however, has allowed the US to become, according to Childress, "the OPEC of plasma," due to the strong market for blood plasma resulting from its legality. Childress also noted that the reason the selling of bone marrow for transplantation is illegal is because of the word "transplantation," when the actual practice is more akin to "transfusion." This means that National Organ Transplant Act of 1984 applies to bone marrow selling and provides for up to five years imprisonment for anyone involved in a compensated donation.

Jeff Rowes, an attorney from the Institute of Justice, a libertarian legal fund, is currently representing a case that hopes to allow the selling of bone marrow through a charitable third party intermediary. The third party has set the price at $3000 dollars and provides the money itself so that the patient does not have to pay directly and engage in some form of negotiation with the seller. This policy where a third party makes payments and sets prices acts as a strong safeguard against extreme exploitation and the inequitable distribution of organs that could result from simply having a free market where organs go to the highest bidder. Currently, the US has a bone marrow donor registry with millions of people, but this is inadequate since the match needs to be very exact - even more exact than with solid organs - and registrants often decline to donate on short notice due to inconvenience. He argues that a set amount such as $3000 dollars should be enough to induce someone to donate marrow right when it is needed. It would also diversify the supply of bone marrow since close matches are needed and minorities are underrepresented, with African-American patients only having a 25% chance of finding a bone marrow donor. Bone marrow transplantation is relatively painless for the donor, but the recipient needs to be close to death since the procedure requires that their native bone marrow cells be killed before the new cells are transferred intravenously and migrate to the bone.

Sigrid Fry-Revere, Founder and President of the Center for Ethical Solutions, contributed some fascinating insights about organ selling in practice, drawing from the research she did in Iran, where organ selling is legal. That applies not only to bone marrow but also to kidneys and other body parts. Counter-intuitively, many of the Iranians Fry-Revere interviewed felt that selling organs was more socially acceptable than donating them. She asked people whether they would want an organ donated from a relative or bought from a stranger and they chose the latter. The reason being something Fry-Revere refers to as the "Tyranny of the Gift" where a person feels forever indebted to a relative for donating an organ to them. Iranians fear that they might not be able to reciprocate if that relative is ever in distress in the future. Organ selling, however, is a self-contained transaction where the patient gets the organ, the seller gets the money, and everyone is happy.

Fry-Revere described the specifics of the organ selling process, which almost seems like applying for a loan. In this case, the prospective seller has to go before a social worker who determines whether the seller will put their organ funds to good use and whether the selling of an organ is the proper way to obtain those funds. The social worker then finds a patient who, often with the help of a charity, can put up the amount of money that the seller is asking for. Fry-Revere notes that the seller rarely gets their original asking price, and once a price is settled upon, the money is put in escrow until the operation is complete. Fry-Revere asserts that organ selling has allowed Iranians to put themselves and their children through college, pay their own or their family's medical bills, and even put an addition on their house so that they can take in borders and pay for the maintenance of chronic illnesses. This process not only helps the patient who receives the organ, but also the organ seller. That is why the Iranians refer to it not as "organ selling" but as "rewarded gifting enforceable by law," thus making it a prime example of helping others while you also helping yourself. In fact, Fry-Revere also related that most organ sellers, when asked why they sold their organs, will say that they wanted to both save a stranger's life while also helping to improve their family's lot. Only when pushed will they say they did it for the money. As of now, Iran has a surplus of organs and as a result has had to ban the buying or selling of organs to foreigners.

The main criticism of a policy like this is that it is exploitative. Indeed, some forms of organ or body part selling can be, especially when they involve non-renewable organs like kidneys or risky procedures like egg-procurement which can result in fatal hyperstimulation of the ovaries or early-onset menopause. Frye-Revere seemed much more comfortable with bone marrow selling leading us down a slippery-slope, whereas Childress was a bit more wary of the slippery slope but felt that bone marrow selling creates a natural halt in the slippery slope due to bone marrow's renewability. I think that the strength of Rowes's proposal is its specificity. It is a narrowly tailored policy for solving a discreet problem, and even Rowes himself stresses that he has no further agenda with his case. We need not fear the slippery slope with this policy.

Another criticism, which tends to come from neoconservative critics, is that selling organs is inherently morally repugnant. Fry-Revere responded very succinctly by saying that in a pluralistic democracy it is up to individuals to decide what they find repugnant and it is not fair for the majority to prohibit it through law. Rowes added a constitutional perspective to this by remarking that a law prohibiting an activity on the ground that it is "morally repugnant" does not advance the public health or safety interests of the state and therefore could fail a "rational basis" test when put before a court.

Finally, there was a brief back-and-forth about the language used to describe the practice of selling bone marrow. Childress felt that the person providing the organ is a "seller" or a "vendor" since "donation" implies that it is done for free. Fry-Revere likes "donation" because, as evidenced in Iran, there is a desire to help others that motivates people to sell organs. Childress felt that the motivation is separate from the act itself. Fry-Revere, nevertheless, emphasized that there are many compensated activities such as a person's job that they can be said to "give" themselves to. Even risky or seemingly undignified jobs are accepted and praised because they give people a chance to be self-sufficient and contribute to their community. In Iran, most of the organ sales happen between poor people, thus allowing the poor to provide income and organs to one another.

There is definitely something Orwellian about Fry-Revere's vision of creating a libertarian utopia by morphing language so that people realize the inherent virtue of all economic transactions. Markets work best when they are fair, regulated, and all citizens have an equal opportunity so that groups with concentrated wealth and power cannot tip markets in their favor. Bone marrow might be a reasonable first step, but before we slide down into the non-renewable organ portion of the slippery slope, let us see how many lives we can save through a policy of presumed consent where organ donation is the default on all drivers' licenses and a driver must opt-out to withhold organs upon death.