A lower court disagreed with the plaintiffs, but the appeals court sided with the plaintiffs, writing "when the 'peripheral blood stem cell apheresis' method of 'bone marrow transplantation' is used, it is not a transfer of a 'human organ' or a 'subpart thereof' as defined by the statute and regulation, so the statute does not criminalize compensating the donor."
The Department of Justice can now ask the full appeals court to reconsider the decision, or it can petition the Supreme Court to take the case.
A spokesman for the department said the agency is reviewing the decision.
The National Marrow Donor Program, which opposes paying for marrow donations, did not agree with the appeal court's decision.
"We were surprised and puzzled by the appellate court's decision regarding allowing compensation for [peripheral blood stem cell] donation," Michael Boo, chief strategy officer for the group, said in a statement. "The National Marrow Donor Program is studying the decision and assessing the impact."
Boo said he doesn't anticipate that the ruling will change the group's practices.
The case is Doreen Flynn, et al v. Eric H. Holder.