More than 3,000 Americans die each year waiting for an appropriate genetic bone marrow match. Unlike blood that has four types, there are millions of possible marrow types. Yet the bone marrow donor pool does not meet the need for the high number of people suffering from blood borne diseases.
In a Dec. 2011 ruling, the 9th U.S. Circuit Court of Appeal determined by “a unanimous three-judge panel that the marrow cells taken from a donor’s blood were blood parts, not organ parts, and that a donor [was] therefore free to accept compensation for a donation.” The Obama Administration filed a petition for the courts to review this decision. This request was denied.
Even though bone marrow is naturally replenishable, unlike livers, kidneys and other whole organs, its sale (as an organ) was barred under the 1984 National Organ Transplant Act. This Act was intended ”to prevent wealthy patients in need of a transplant from luring the poor into submitting to a painful and risky procedure to make money.” And it was illegal to traffic in organs. However, with the Circuit Court having redefined bone marrow as a blood organ, the Administration fears the poor could suffer.
Roughly three years ago, a new procedure, apheresis, was perfected to retrieve marrow. This procedure extracts marrow from the bloodstream. Under the old procedure, cells were harvested only under anesthesia. Surgeons inserted a large needle into the hip bone and siphoned out the marrow cells. This method was both risky and painful.
Following this scientific advance, an attorney for the Institute for Justice argued before the courts that “Compensation [would] expand the donor pool by at least hundreds and potentially thousands each year.”
In an opinion written by Judge Andrew J. Kleinfeld, an appointee of President George H.W. Bush, the courts found, ”We construe ‘bone marrow’ to mean the soft, fatty substance in bone cavities, as opposed to blood, which means the red liquid that flows through the blood vessels.”
This victory was well received by families with members suffering with genetic disorders. They are working to expand the donor pools now before they need the services and for those presently in need.
Even though the 9th Circuit decision was unanimous, the Supreme Court has not commented on the constitutional questions raised in the lawsuit or on the changes in the organ transplant law’s interpretation, said Jeff Rowes, the Institute for Justice lawyer who argued the case.
It remains to be seen whether the Supreme Court will agree with the plaintiff’s argument that Federal law treating bone marrow in the same way as organs that can’t be regenerated violates the Equal Protection Clause of the Constitution.
Tens of thousands of patients are awaiting a life saving bone marrow match, but only half will get one. Let’s change those stats. LIKE this page for more information.
Photo credit: Jack Bushmills
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