Metropolitan News-Enterprise


Friday, December 2, 2011


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Ninth Circuit Rules:

Paying Marrow Donors Does Not Violate Organ Trafficking Law


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that federal law prohibiting the trafficking of human organs does not criminalize the payment of compensation to some bone marrow transplantation donors.

In a decision by Judge Andrew J. Kleinfeld, the unanimous panel reasoned that a relatively new method of extracting cells from a donor for transplant in a sick patient was akin to the process of giving blood, and so paying such donors under a pilot program proposed by was not a “commodification of human flesh.”

This extraction method, known as “peripheral blood stem cell apheresis,” was developed  about 20 years ago and involves harvesting of “hematopoietic stem cells” from the bloodstream. “These stem cells are seeds from which white blood cells, red blood cells, and platelets grow,” Kleinfeld explained, and differ from the embryonic stem cells often the subject of controversy.

Hematopoietic stem cells turn into blood cells, and are produced by humans and other large mammals continuously, in vast numbers. Most blood stem cells stay in the bone marrow cavity and grow into mature blood cells there, before passing into the blood vessels. But some blood stem cells flow into and circulate in the bloodstream before they mature.

During the apheresis process, blood is drawn from the vein of a donor, filtered through a machine which extracts the blood stem cells, and the remaining components of the blood are returned to the donor’s vein. The donor’s bone marrow naturally replaces the blood stems cells lost within three to six weeks.

This technique, Kleinfeld said, is used in at least two-thirds of bone marrow transplants, and differs from the older method of bone marrow donation, known as “aspiration,” which is a painful procedure requiring the insertion of a long, thick needle into a donor’s pelvis to suck out the soft, fatty substance commonly called “marrow” in the central cavities of large bones.

Kleinfeld characterized “marrow” as “the body’s blood manufacturing factory,” and explained that transplants of either marrow itself, or the blood stem cells, allow for a patient’s body to begin the process of producing healthy blood cells essential to survival.

Marrow donors, however, must be a close genetic match to patients for the transplant to be successful, and Kleinfeld noted good matches often cannot be found.

Financial Incentive, a California nonprofit group, proposed to mitigate this problem by using a financial incentive to induce more individuals to become potential donors. The group said it wanted to offer $3,000 in scholarships, housing allowances, or gifts to charities of the donor’s choice, but that its plan was foreclosed by the National Organ Transplant Act.

The act, codified at 42 U.S.C. § 274e, makes it a felony “to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation,” and defines the term “human organ” to include “bone marrow.”

Joined by a variety of individuals affected by diseases treatable by a bone marrow transplant, the group filed suit against the federal government challenging the constitutionality of the act.

U.S. District Court Judge Valerie Baker Fairbank of the Central District of California dismissed the complaint as failing to state a claim, but the Ninth Circuit reversed.

Kleinfeld, joined by Senior Judge Alfred T. Goodwin and Judge Susan P. Graber, said the Legislature had a rational basis for allowing compensation for blood, sperm, and egg donations, while disallowing compensation for bone marrow donations.

Methods Contrasted

Since the act prohibits compensation for bone marrow donations, he concluded the aspiration process, wherein actual marrow is taken from the donor, cannot be something for which a donor is paid. But, Kleinfeld said, the apheresis method is not encompassed by the act since “none of the soft, fatty marrow is donated, just cells found outside the marrow, outside the bones, flowing through the veins.”

The jurist acknowledged that “the bloodstream consists of plasma containing red cells, white cells, platelets, stem cells that will mature into one of these, and other material,” and this liquid as a whole is called “blood,” not “bone marrow,” even though these cells come from the marrow.

Since the act “does not prohibit compensation for donations of blood and the substances in it, which include peripheral blood stem cells,” he said the question of whether prohibiting compensation for such donations would be unconstitutional did not need to be answered.

“It may be that “bone marrow transplant” is an anachronism that will soon fade away, as peripheral blood stem cell apheresis replaces aspiration as the transplant technique, much as ‘dial the phone’ is fading away now that telephones do not have dials,” Kleinfield surmised, but even if it lives on as a phrase, when the apheresis method of bone marrow transplantation is used, it is not a transfer of a “human organ” as defined by the statute, so the statute does not criminalize compensating the donor.

The case is Flynn v. Holder, 10-55643.


Copyright 2011, Metropolitan News Company