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Is the Ban on Selling Bone Marrow Unconstitutional?—A Commentary by Ian Ayres ’86

The following commentary was posted on newyorktimes.com on November 3, 2009.

Is the Ban on Selling Bone Marrow Unconstitutional?
By Ian Ayres ’86

I’ve written a fair amount about organ transplantation in the past (for example, here and here). But it was only in reading SuperFreakonomics that I learned that “the Iranian government [pays] people to give up a kidney, roughly $1,200, with an additional sum paid by the kidney recipient.” The book also tells the story of our own country’s brief flirtation with donor compensation:

In the United States, meanwhile, during a 1983 congressional hearing, an enterprising doctor named Barry Jacobs described his own pay-for-organs plan. … His most vigorous critic was a young Tennessee congressman named Al Gore, who wondered if these kidney harvestees “might be willing to give you a cut-rate price just for the chance to see the Statue of Liberty or the Capitol or something.”

Congress promptly passed the National Organ Transplantation Act [NOTA], which made it illegal “for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation.” (p. 112)

NOTA’s criminal prohibition of donor compensation has now just been challenged in a lawsuit filed by the Institute for Justice. On October 28, a group of plaintiffs (including people with deadly blood diseases) sued Attorney General Eric Holder, claiming that the criminalization of compensation violates their equal protection rights. The suit does not challenge the general ban on organ sales but argues that the application of the ban to renewable tissue is arbitrary and irrational:

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells — such as blood — for which compensated donation is legal. … The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

(Here’s a link to the full complaint.) You can hear the plaintiffs tell their story in this video: http://www.youtube.com/watch?v=GOO2kQZbqB0&feature=player_embedded

The suit is also joined by MoreMarrowDonors.org, a California nonprofit that “intends to use privately contributed charitable funds to reward the most needed donors, especially minorities, with a $3,000 scholarship, housing allowance, or gift to the charity of the donor’s choice.”

A lot turns on this classic question of economics and ethics. Plaintiffs say that “[e]very year, 1,000 Americans die because they cannot find a matching bone marrow donor.” Plaintiff physician John Wagner says that of the 2000+ patients he has treated in need of bone marrow transplants, at least 20 percent “have died because they have been unable to find a matching bone-marrow donor.” Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.” Rowes is guest blogging about the case this week at The Volokh Conspiracy.

I’m not sure if NOTA is unconstitutional. It’s pretty hard to convince a court that a statute is unconstitutionally irrational. But I’m pretty sure the United States would be a better place if MoreMarrowDonors.org could offer college scholarships without ending up in jail.