A fascinating new lawsuit has been filed by the Institute for Justice challenging a federal ban prohibiting compensation to bone marrow donors. According to the Institute of Justice:

Every year, 1,000 Americans die because they cannot find a matching bone marrow donor. Minorities are hit especially hard. Common sense suggests that offering modest incentives to attract more bone marrow donors would be worth pursuing, but federal law makes that a felony punishable by up to five years in prison. That is why on October 28, 2009, adults with deadly blood diseases, the parents of sick children, a California nonprofit and a world-renowned medical doctor who specializes in bone marrow research joined with the Institute for Justice to sue the U.S. Attorney General to put an end to a ban on offering compensation to bone marrow donors.

The National Organ Transplant Act (NOTA) of 1984 treats compensating marrow donors as though it were black-market organ sales. Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow could land everyone—doctors, nurses, donors and patients—in federal prison for up to five years. 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. That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again. 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.

Notably, gametes are not covered under NOTA which is why sperm and egg donors can be compensated. Yet eggs are neither renewable nor inexhaustible. So while I am obviously not suggesting that oocytes ought to fall under NOTA, the Plaintiffs do have an interesting argument regarding the arbitrary application of the renewable versus nonrenewable nature of the material to be donated. Why exactly is blood treated differently than bone marrow? Ultimately that will be the question that the Court will have to answer. Without having much information on the legislative history behind NOTA, it seems likely to me that while attempting to prohibit legitimate abuses such as a black market for human organs, Congress over-reached and erroneously included bone marrow under the statute.

Beyond that, it is absolutely horrific that so many Americans die each year of potentially avoidable deaths because of a peculiar hyper-sensitivity to donor compensation. Similar laws that have prohibited egg donor compensation in many countries around the world have forced infertile couples to wait as long as a decade before finding an altruistic egg donor willing to assist. In most cases, these couples simply abandon any hope of having a family. With respect to bone marrow donation, however, the results are far more tragic and final.

I will continue to blog about this case as it moves forward.