Good news out of San Francisco today:
A federal appeals court ruled Thursday that most bone marrow donors can be paid, overturning a decades-old law that made such compensation a crime.
In its ruling Thursday, the 9th U.S. Circuit Court of Appeals said a technological breakthrough makes donating bone marrow a nearly identical process as donating blood plasma. It’s legal — and common — to pay plasma donors. Therefore, the court ruled, bone marrow donors undergoing the new procedure can be paid as well and are exempt from a law making it a felony to sell human organs for transplants.
This is great news for the Institute for Justice , which is undoing years of bad legislative decisions, and Amit Gupta, who is suffering from leukemia. He became the center of the case after a group of his friends set up a pot for a matched donor.
Virginia Postrel chronicled Gupta’s then-illegal search for a marrow donor:
The website TechCrunch drove new waves of interest with an article headlined, “#IswabbedforAmit Offers Up 20K To Find A Bone Marrow Donor For Startup Founder Amit Gupta.”
There was only one problem. The offer was illegal.
Under the National Organ Transplant Act of 1984, better known as NOTA, it’s a federal crime to give or receive “valuable consideration” for any transplantable organ or tissue, specifically including bone marrow. (Expenses incurred in making a donation, including not only medical costs but also travel and lost wages, are exempt.)
.. As Gupta’s story illustrates, however, that’s not necessarily the case. Money can be an expression of commitment and a powerful spur to get people to act on their compassionate instincts. Financial incentives can overcome inertia and procrastination. They can steer people toward socially beneficial behavior. Nobel Prizes come with money, and we don’t, after all, expect every firefighter, nanny or transplant surgeon to work for free.
Virginia Postrel has written beautifully on the market for organs. While I doubt everyone will agree with her about kidney transplants, I’m thankful that thousands will have more opportunities to return to health.
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Comments
As far as Pro-Organ market books go, Mark Cherry’s “Kidney for Sale by Owner” (Use the LI Amazon Link to find it) is widely regarded as top work in the field.
Personally I think it’s often too easily dismissed the idea Organ sales would primarily be of benefit only to the very wealthy. We already see this in clinical trials, very few rich people participate in phase I trials (by the most risky with little to know clinical benefit) as the benefits improve (Phase II and especially Phase III) you do get more participants from higher classes, but it’s not money motivating them. Organ sales would work roughly the same way, the poor wouldn’t be able to afford to buy kidneys but would sell them (to more wealthy people). It becomes a form of comodification of the body I’m not entirely comfortable with.
Inevitably the Government would see the need to get involved (so poor people could get Kidneys too!) and the price would become inflated to insanity (see college tuition). I’m just not sure how exactly to solve that problem. Part of me wants to say “let’s give it a shot!” and see how it goes, fixing problems as we go along.
Meanwhile, reimbursement for medical expenses, lost wages, etc is a must, and something I consider a different issue. After all, I shouldn’t be a huge net loss of anything (aside for my kidney of course) if I decide to try to help someone. The current system is a bit broken in that regard. I could also certainly see something like payment for funeral services to cadaver donation coming into play. That might even sway wealthier individuals to donate who otherwise wouldn’t (with a sort of “can’t take it with you when you go” mentality sinking in.)
I guess one concern is that people in desperate financial straits might do harm to themselves if they could earn money by selling organs. We already have proof of that in the international maternal surrogacy market, and in young college women allowing their systems to be drugged up with hormones in order to harvest and sell ova (mixed research findings on whether this might cause ovarian cancer or some other malady later in life.) It’s the same concern as with baby-selling, and overly aggressive adoption agencies.
Another concern is that donations would dissipate — why give away for free what could be sold, and the market would skew who could get organ replacements (those who can bid the highest fees).
[…] Legal Insurrection, Kathleen McCaffrey cheers the decision as a step in the right direction. This is great news for the Institute for Justice , which is […]