Final Victory for Cancer Patients In Bone Marrow Donor Case

John Kramer
John Kramer · June 25, 2012

Arlington, Va.—The Institute for Justice today announced a major legal victory for cancer patients and their families from across the nation when U.S. Attorney General Eric Holder declined to seek Supreme Court review of a March 2012 decision of the 9th U.S. Circuit Court of Appealsruling that compensating most bone- marrow donors is not a crime. This decision will give doctors and their patients a powerful tool in the fight against deadly blood diseases.

“This decision will not only save lives, but also reinforce the principle that doctors and patients should have the freedom to make their own choices when confronted with deadly diseases,” said Jeff Rowes, a senior attorney with the Institute for Justice and lead counsel on the case.

This landmark case began in October 2009 when the Institute for Justice filed suit against the U.S. Attorney General on behalf of cancer patients, the parents of children with deadly diseases, a renowned bone-marrow doctor, and a nonprofit group to challenge the prohibition on compensating bone-marrow donors set forth in the National Organ Transplant Act (NOTA) of 1984. NOTA made it a serious crime, punishable by up to five years in prison, to compensate someone for a human organ for transplantation. The Act defines bone marrow as an organ.

The Plaintiffs argued that classifying bone marrow as an organ was so irrational as to be unconstitutional. Unlike solid organs such as kidneys, which do not grow back when they are removed, bone marrow is completely renewable. In fact, bone marrow is really just immature blood, and Congress specifically excluded blood from NOTA.

A key fact in the case is that most bone-marrow transplants now occur using a technique that extracts marrow cells from the bloodstream (rather than through the hip, as was the traditional means of procuring bone marrow) and the process is very similar to donating blood. The 9th Circuit ruled that NOTA does not prohibit compensating a donor for marrow cells obtained directly from the bloodstream because Congress excluded blood and blood components from NOTA.

“Our hope is that compensation will induce more people to register as potential bone-marrow donors, stay in touch with the marrow registry over the years, and then actually go through with the donation if ever asked. The basis of prosperity around the world is that you get valuable things by paying for them, and we want to put that simple premise to work in the bone-marrow context,” said IJ Senior Attorney Robert McNamara.

The 9th Circuit rendered its original decision on December 1, 2011, but the Attorney General petitioned the entire court to rehear the case in a special proceeding called en banc review. The 9th Circuit declined, which left the U.S. Supreme Court as the Attorney General’s only option. With the Attorney General not seeking review at the high court, the case is effectively over.

This video explains the life-or-death legal battle: change-bone-marrow-donor-law-gets-transplant?lite

Chip Mellor, president and general counsel of the Institute for Justice, said, “The lifesaving potential of this victory illustrates the importance of putting liberty and patient choice at the forefront of our ongoing national debate about health care. When allowed to do what they think is best for themselves and their children, Americans will continue to find ingenious ways to make our world healthier.”