The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that a federal law prohibiting payment for vital organs does not apply to all types of bone marrow transplants, opening the door for compensation to be paid to a specific type of bone marrow donors. The court held that the 1984 National Organ Transplant Act (NOTA) [42 USC § 273, PDF], which criminalizes the compensation for the transfer of human organs, does not apply to a type of bone marrow donation known as "apheresis." Apheresis is a procedure developed within the last 20 years whereby the donor undergoes a series of injections over five days in order to stimulate production of hematopoietic blood cells in the blood flowing through the donor's veins. The donor then sits for a period of hours while the donor's blood is filtered through a machine designed to remove the hematopoietic cells. The court analogized the apheresis procedure with the normal procedure of donating blood, and noted that the NOTA does not prohibit compensation for the donation of blood. The NOTA explicitly prohibits compensation for providing bone marrow, but the court rejected the government's argument that the hematopoietic cells should be considered "bone marrow" simply because they were produced by the marrow of the bone. The court stated that if definition of the term "bone marrow" were to include any blood product produced by the marrow, then compensation for blood donors would also have to be prohibited because red and white blood cells are also produced by the marrow. The court noted that they construe the term "bone marrow" to mean the "soft, fatty substance in bone cavities, as opposed to blood, which means the red liquid that flows through the blood vessels." The court also determined that because the apheresis procedure had not been developed when the NOTA was enacted, Congress could not have intended for the Act to prohibit the procedure. They further held that the apheresis method of bone marrow transplantation "is not a transfer of a 'human organ' or a 'subpart thereof' as defined by the statute and regulation" so therefore, the statute does not criminalize the compensation of apheresis bone marrow donors.
The lawsuit challenging the application of the law to bone marrow donation was brought by a non-profit organization called MoreMarrowDonors.org [advocacy website], as well as plaintiffs who claimed they were unable to find bone marrow donors because it is more difficult for ethnic minorities and people of mixed race to find genetic donors for bone marrow. MoreMarrowDonors.org plans to begin a pilot program that would offer $3,000 in compensation [AP report] in the form of scholarships, housing allowances or gifts to charity, to bone marrow donors who undergo the apheresis procedure, in the hopes they will attract more minority donors, thereby increasing the number of potential genetic matches. According to the plaintiffs, nearly 3,000 Americans die each year [San Francisco Chronicle report] while attempting to find a genetically appropriate bone marrow donor. Use of the traditional "aspiration" method of bone marrow extraction, contributed to the lack of appropriate donors due to the invasive, painful method of the procedure which required extraction of the marrow from the donors' bones using a long needle. Under the court's ruling, compensation for aspiration bone marrow transplants remains illegal because it was specifically prohibited by Congress under the statute. Aspiration bone marrow transplants currently account for approximately 30-percent of bone marrow transplants, while the remainder of bone marrow transplants are performed using the less invasive apheresis method.