Dec. 2, 2011 -- An appeals court has ruled that people who donate bone marrow through a newer and less invasive technology can be paid for doing so, overturning a decades-old law that makes it a felony to pay donors for bone marrow and organs.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in California ruled unanimously that because the process of donating bone marrow is now so similar to that of donating blood plasma -- which people are paid for -- bone marrow should no longer be considered an organ for which payment is illegal under the National Organ Transplant Act.
A newer method of marrow extraction called peripheral blood stem cell apheresis removes stem cells from a donor's bloodstream in a process similar to donating blood, except that patients must take medication to spur greater production of hematopoietic stem cells, the donation process takes several hours, and instead of collecting bags of blood, the hematopoietic stem cells from the donor's bloodstream are filtered out and collected.
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Apheresis is now used in at least two-thirds of marrow donations, according to the court decision, written by Judge Andrew Kleinfeld.
Their ruling applies only to the new method of harvesting bone marrow, the appeals court wrote, not to the older aspiration method.
Because the new method is becoming increasingly prevalent, the term "bone marrow transplant" may soon fade away, the judges said.
"It may be that 'bone marrow transplant' is an anachronism that will soon fade away, as peripheral blood stem cell apheresis replaces aspiration as the transplant technique, much as 'dial the phone' is fading away now that telephones do not have dials," Kleinfeld wrote in the court's decision.
Some of the plaintiffs in the case are parents of children with diseases, such as leukemia, that can be deadly without bone marrow transplants. Another plaintiff is a doctor and bone marrow transplant expert who said at least one in five of his patients die because no matching bone marrow donor can be found. Yet another has mixed-race children, for whom matched donors are particularly scarce. Matches for African Americans are particularly hard to find.
A California nonprofit that would like to offer incentives to bone marrow donors is also a party to the lawsuit. The group, MoreMarrowDonors.org, proposes offering $3,000 in awards in the form of scholarships, housing allowances, or gifts to charities, at first to minority and mixed-race bone marrow cell donors.
Opponents argue that providing payments for bone marrow could make transplants more widely available to the rich than to people with less money, that poor people could be exploited to sell marrow, or that payments might spur an uptick in the existing market of organ thefts.
Proponents of paying donors argue that there aren't enough matches in the National Bone Marrow Program registry, and providing incentives would allow more life-saving matches to be made.
The plaintiffs in the case argued that bone marrow donation is not so different from blood, plasma, sperm, or egg donation, which are not protected under the National Organ Transplant Act.
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.