Legalizing bone marrow donor compensation

In a move which is sure to open up some old debates over ethics in medical technology, one court has approved allowing monetary compensation for blood marrow donors. However, the exception would not be applicable to older, traditional marrow extraction directly from the bones of donors, but from a newer method where specialized cells which grow into bone marrow in the lab are extracted from the donor’s blood stream.

A federal appeals court ruled Thursday that most bone marrow donors can be paid, overturning the government’s interpretation of a decades-old law making such compensation a crime punishable by up to five years in prison.

In its ruling, the 9th U.S. Circuit Court of Appeals said a technological breakthrough makes donating bone marrow a process nearly identical to giving blood plasma.

Advocates for paying donors said compensation will spur even more donations. Detractors argue that donor compensation will exploit the poor to undergo risky medical procedures to benefit the wealthy.

At Legal Insurrection, Kathleen McCaffrey cheers the decision as a step in the right direction.

This is great news for the Institute for Justice , which is undoing years of bad legislative decisions, and Amit Gupta, who is suffering from leukemia. He became the center of the case after a group of his friends set up a pot for a matched donor…

Virginia Postrel has written beautifully on the market for organs. While I doubt everyone will agree with her about kidney transplants, I’m thankful that thousands will have more opportunities to return to health.

As noted, I’m not sure if this opens up the entire ethics debate again about compensating people for organ donations, though perhaps it should. In this case, the court took great pains to note that they were not approving the idea of direct marrow transplant donations, but were treating this new procedure as being in the identical legal class as blood plasma donations. (Which are and have been legal in terms of paying donors.) And this is certainly good news for the many people waiting for bone marrow who may die otherwise.

The long running debate on paying for actual organ donations, including not only whole marrow, but things like kidneys and lungs, is unlikely to see a major change because of this case. Opponents argue that it would lead to a society of desperate, ill informed poor people essentially becoming farm animals serving the needs of the very rich to stay alive while imperiling their own lives. A parallel argument claims that normal donations of organs available to people of all levels of financial means would dry up if there was a vast market being offered by the wealthy.

The more libertarian inclined tend to argue that each person is the final arbiter and owner of their own body, and whose business is it if they want to get out of debt by selling a kidney? (You can still lead a fairly normal life with only one, as some of our close friends here can attest.) Plus, large numbers of organ donations come from deceased accident victims with organ donor cards, which in theory could still go to anyone.

It’s a complex subject, and I confess I never find myself completely comfortable with a decision on either side. But cases like this one may provide the opportunity to have that debate yet again. Is this even the province of the government to decide, particularly at the federal level?