Payment for Bone Marrow Donors?

Posted by Pete Shanks December 8, 2011
Biopolitical Times

A federal appeals court has ruled that in certain circumstances it may be legal to pay for materials used in bone marrow transplants. The ruling was fairly narrow, and the court explicitly refused to declare the ban on compensation unconstitutional. Instead it relied on a technological development to suggest that what used to be a kind of organ donation is now more like a blood transfusion.

Bone marrow donors used to have a large needle stuck into their bone, through which marrow was extracted. The key ingredient in the marrow, however, consists of stem cells that have since been identified in circulating blood. It is now possible to extract the relevant material via apheresis, in which the blood is passed through an external machine before being returned to the donor. (The image is from, via this patient's blog.) This procedure is still regarded as "investigational" and does involve some risks, including concerns about the safety of the drugs donors take to increase the amount of stem cells in their blood.

Stanford law professor Hank Greely posted a good description of the technical and legal process on the Law and Biosciences blog, and essentially supports the ruling. He also mentions the possibility that there may in the future be issues about compensation involving regenerative medicine in general. However, his post provoked an important opposing comment by Alex Capron, which Greely appreciated enough that he made it a post of its own.

Capron is very disturbed by what he calls "an unwise decision based on [the court's] fascination with a change in technology." He stresses that the Act banning payment, which did include some exceptions, such as blood, eggs and sperm, was written "to prevent the development of a market in organs for transplantation based on three propositions":

  • that having a market will not increase and in fact may decrease the availability of organs for transplantation,
  • that paying people to part with their organs for money (or other "valuable consideration") will result in the poorest and most vulnerable people becoming the organ bank for those who can afford transplants, and
  • that payments for body parts amounts to turning human beings into market commodities.

Capron is also concerned that this decision may actually be used to push for payments for kidneys and livers, and thus undermine the entire purpose of the Act. Greely has since responded at some length, acknowledging concerns about exploitation but supporting "efforts to create guidelines for compensation schemes for these cells." This is an important discussion, and all three posts are recommended.

Previously on Biopolitical Times: