Philanthropists Offer Prize for Bone Marrow Donation, Get Threat of Prison Sentence for Their Trouble

These days, donating bone marrow isn't so bad. In most cases, you no longer have to go under anesthesia and no one sticks a giant needle in your hip bone anymore. Instead, drugs to cause your body to overproduce the useful stem cells, which are shed into the bloodstream and easily extracted from blood drawn through a (relatively) non-scary needle in the arm, just like a normal blood donation.

Which makes it all the more ridiculous, former Reason Editor in Chief Virginia Postel writes in a moving Bloomberg column, that offering money for a match is still illegal. 

When Amit Gupta told his friends a few weeks ago that he had acute leukemia and needed a bone-marrow transplant, the word spread quickly.

Two friends offered $10,000 each to find a donor.

With $20,000 at stake, the cause did indeed take on new urgency. Instead of just passing on news that Gupta needed help, people started bragging #IswabbedforAmit on Twitter. The money also made for a sexier news story. The website TechCrunch drove new waves of interest with an article headlined, "#IswabbedforAmit Offers Up 20K To Find A Bone Marrow Donor For Startup Founder Amit Gupta."

There was only one problem. The offer was illegal.

Amit's money men revised their offer, proffering money for the first match, whether or not there is a donation. That keeps them within the letter of the law, out from under the threat of a fine and five years in prison, and keeps the swabs coming.

But that law may be on the way out:

In February, the 9th U.S. Circuit Court of Appeals heard arguments in a lawsuit challenging the constitutionality of the ban on valuable consideration for bone-marrow donations. The suit was brought by the Institute for Justice, a libertarian public-interest law firm, on behalf of plaintiffs who include patients, parents of sick children, a doctor who does bone- marrow transplants and a charity that would like to offer incentives, such as scholarships, to encourage more donations.

The lawsuit argues that since marrow cell transplants aren't significantly different from blood transfusions, the federal government has no "rational basis" for outlawing the kind of compensation that is perfectly legal not only for blood but also for other regenerating tissues, such as hair and sperm, not to mention eggs, which don't regenerate. This disparate treatment of essentially similar processes, it maintains, violates the Constitution's guarantee of equal protection. A decision could come down any day.

More Postrel on legalizing the sale of human bits and pieces here: