By Jeff Rowes

Doreen Flynn’s three young daughters have Fanconi anemia, which causes leukemia, a deadly blood cancer.  Sometime in the next few years, the girls will need bone marrow transplants, but, as with most patients, no one in their family is a compatible donor.  Doreen’s greatest fear is that her girls will share the fate of tens of thousands of Americans who died because they could not find a donor.  Tragically, a federal law has seriously worsened the shortage of potentially life-saving bone marrow donors.

That is why on October 26, 2009, IJ joined Doreen, other families facing cancer, a renowned bone marrow specialist, and a California nonprofit to file suit against the U.S. Attorney General to strike down the bone marrow provision of the National Organ Transplant Act (NOTA).  NOTA makes it a felony to do the one thing that would have a dramatic impact on the current shortage of unrelated marrow donors:  Compensate them.

Doreen and IJ’s other clients want to increase marrow donations with a $3,000 scholarship, a housing allowance or a gift to the donor’s favorite charity.  But using a modest scholarship to save lives is a major crime and everyone involved—doctors, nurses, donors and patients—can get up to five years in prison.

That makes no sense.  Congress passed NOTA in 1984 to outlaw kidney markets.  Congress did not like that kidney surgery is invasive, that a donated kidney does not grow back, and that organs would flow from the poor to the rich.

Those concerns do not apply to marrow.  Marrow is just immature blood inside the bones, not an organ.  Donating marrow is safe—most donations use the same equipment for blood donation—and marrow replenishes itself after donation like blood.  In fact, the evidence is overwhelming that Congress included marrow in NOTA by mistake.

Even though our clients intend to harness market-like incentives, there will not be actual markets in marrow.  Matching marrow donors and recipients is vastly more complex than doing so in the blood context.  Doctors find matches by searching a national registry that has the genetic profiles of millions of potential donors.  If a match is found, the donation occurs anonymously.  No potential donor could auction off her marrow on Ebay, for example, because the odds of finding a buyer in immediate need of that exact marrow type are infinitesimal.

Furthermore, compensation for donors will come from philanthropists, not patients receiving a transplant.  Thus, markets in marrow would not arise.

Compensation could save thousands of lives and give hope to families across the country.  African-Americans, for example, have only a 25 percent chance of finding an unrelated donor.  Asians and Hispanics have less than a 50 percent chance.  Even Caucasians, who have the best chance, will find an unrelated donor only 75 percent of the time.

The constitutional problem is straightforward.  The government cannot throw doctors and donors into prison for five years for the compensated donation of renewable bone marrow when it is perfectly legal to compensate someone for donating renewable blood.  That arbitrary distinction  violates equal protection.  In addition, NOTA violates the substantive due process right to participate in safe, accepted, lifesaving and otherwise legal medical treatment.

This case falls squarely within IJ’s strategic mission to protect individual liberty.  As in IJ’s economic liberty and property cases, our challenge to NOTA will be litigated under the “rational basis test,” which, as you may recall from other newsletter articles, is a major obstacle to liberty.  In a nutshell, the rational basis test currently allows judges to uphold a law if there is nothing more than a “conceivable” reason for it, even if the evidence shows that the actual reason, such as trying to suppress the right to earn an honest living, is illegitimate.  Our victory in the bone marrow case will not only save lives, but also create “rational basis” law that will protect freedom in other contexts.

Doreen took on this fight for her daughters and thousands of others like them.  We are proud to join her and demonstrate yet again that liberty remains the best solution for the challenges we face.

Watch our new FreedomFlick about this case.

Jeff Rowes is an IJ senior attorney.