A new federal lawsuit argues that compensating bone marrow donors, currently a crime punishable by up to five years in prison, should be legal. The suit, brought by the Institute for Justice (IJ), a libertarian public interest law firm, argues that the National Organ Transplant Act’s ban on paying for bone marrow violates the Fifth Amendment’s Due Process Clause.
IJ is representing a transplant surgeon, the California-based nonprofit bone marrow registry MoreMarrowDonors.org, and several people who are seeking donations to treat diseases such as leukemia and Fanconi’s anemia. IJ argues that the compensation ban denies equal protection “by arbitrarily and irrationally treating renewable bone-marrow cells like nonrenewable solid organs such as kidneys, instead of treating them like other renewable or inexhaustible cells such as blood cells, sperm cells, and egg cells for which compensated donation is legal.” Marrow typically is fully replenished within weeks of being donated.
The suit also argues that the compensation ban “violates Plaintiffs’ substantive-due-process right to participate in safe, accepted, lifesaving medical treatment.” Every year 1,000 Americans die because they cannot find a matching marrow donor. If donors could be compensated with rewards such as a $3,000 scholarship or a month’s mortgage payment, IJ suggests, many of those deaths could be avoided. “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish,” says IJ attorney Jeff Rowes, “is unnecessary deaths.”