How much would it take for you to consider selling your bone marrow? A
U.S. appeals court puts the price at about $3,000 in a ruling that now
makes it legal to pay donors for their bone-marrow tissue.
The court's decision may
well help thousands of sick patients who need bone-marrow transplants to
survive, but it also begs the question, What other body parts might
next be up for sale?
The ruling
came about at the end of 2011, in a decision to an October 2009 lawsuit
brought by a group of cancer patients, parents and bone-marrow-donation
advocates against the government over the federal law banning the
buying and selling of bodily organs. The plaintiffs were led by Doreen
Flynn, who has three daughters who suffer from Fanconi anemia, a blood disorder that requires bone-marrow transplants to treat.
Flynn and the other
plaintiffs said that too many such patients die waiting for transplants
and argued that we should be allowed to pay people to donate their
marrow as a way of ensuring a more reliable supply. The U.S. Court of
Appeals for the Ninth Circuit agreed.
At the core of the
plaintiffs' argument was the National Organ Transplantation Act (NOTA),
which since 1984 has forbid the buying and selling of human organs,
including bone marrow. But new developments in bone-marrow extraction
have made marrow donation not much different from donating blood.
Traditionally,
bone-marrow donation required anesthesia and long needles to extract the
marrow from the hip bones of donors. Now, a technique called peripheral
apheresis allows doctors to extract blood stem cells directly from the
blood, instead of the bone -- patients first take a drug that pulls stem
cells from the bone and into the blood -- meaning that the marrow cells
should be considered a fluid like blood, rather than an organ, the
plaintiffs argued. NOTA doesn't prohibit payments for blood or other
fluids, such as plasma or semen.
U.S. Attorney General
Eric Holder decided not to ask the Supreme Court to review the appellate
court's decision, which would have been the next step in overturning
it. That means the ruling stands -- and that people can now be paid up
to $3,000 for their marrow, as long as it is collected by apheresis. In a
concession to the spirit of NOTA, however, the compensation can't be in
cash; it needs to be in the form of a voucher that can be applied to
things such as scholarships, education, housing or a donation to a
charity.
While the decision
applies only to the nine states covered by the Ninth Circuit court, and
only to bone marrow obtained through apheresis, it does raise bigger
questions about how we will look at organ donation in the future. With
about 114,000 people waiting for organs in the U.S. alone on any given
day, and only 3,300 donors, the urgent medical need runs up against
moral standards of the value of human life. Once we start paying for the
parts we need, though, how far do we go?
"We don't allow people
to buy and sell human beings, that's slavery," says Dr. Robert Klitzman,
director of the bioethics program at Columbia University. "Should we
allow people to buy and sell human body parts?"
Of course, certain body
parts are already up for sale. Aside from sperm and plasma, donors can
also be paid for their eggs and hair. But by expanding that list, the
court's ruling reopens the long-standing ethical debate over the
commercialization of human tissues. For now, legally "sellable" human
body parts aren't ones that could be used to cure fatal diseases, which
prevents a market frenzy.
But if the bone-marrow
case starts changing that -- and experts say it could -- it might
jump-start a dangerous trend in which lower-income groups were
disproportionately targeted or incentivized to give up their marrow and
people with rarer blood types demanded more money for their valuable
cells.
Still, the benefits of
compensating people for providing cells like bone marrow -- which the
body replaces and which involves a relatively safe extraction -- may be
wide-reaching, as Flynn and the plaintiffs argue. "In some sense, this
is a policy experiment, and it could potentially be groundbreaking,"
says Jeffrey Kahn, professor of bioethics and public policy at the Johns
Hopkins Berman Institute of Bioethics. "If we compensate donors who
give by apheresis and more people end up receiving [blood-] stem-cell
transplants, maybe we should think about this for other kinds of
donations."
Already, he points out,
there is international trade for other organs. Websites allow people to
find matching donors for kidneys, for example (people are born with two
kidneys, but can live with one), and U.S. patients travel to developing
nations to obtain transplants. There isn't supposed to be compensation,
but it's hard to regulate such exchanges.
Nevertheless, selling
tissues or organs may not be the logical first step in addressing the
disconnect between supply and demand. Klitzman notes that there are
other changes we can make to U.S. organ-donation policy that might
improve giving rates. In Spain, for example, all citizens are organ
donors by default; those who don't wish to participate must opt out. In
the U.S., in contrast, people must voluntarily opt in to give, which
could be a deterrent.
Even within such
systems, there are incentives that can entice donors. In Israel, for
example, family members of donors are given priority on the waiting list
of organs should they need one. "To me, it's not clear that the current
decision means we should overturn NOTA," says Klitzman. "I personally
think we should have the debate about whether there are creative ways of
enhancing donation of organs."
Certainly, if the goal
is to improve the supply of much needed tissues without toeing an
ethically troublesome line, those options are probably worth pursuing.
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