Metropolitan News-Enterprise


Friday, January 20, 2012


Page 1


U.S. Seeking En Banc Review of Bone Marrow Ruling


By a MetNews Staff Writer


The Department of Justice has asked the Ninth U.S. Circuit Court of Appeals for en banc review of a Dec. 1 panel ruling that would open the door to the payment of compensation to some bone marrow transplantation donors.

The DOJ filed its petition on Tuesday, seeking reconsideration in  Flynn v. Holder, 10-55643. The government argues that federal law prohibiting the trafficking of human organs criminalizes sale of bone marrow, regardless of the means of extraction.

That position was rejected by the three-judge panel in an opinion by Senior Judge Andrew J. Kleinfeld, who 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. That being the case, Kleinfeld said, 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., 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 Congress had a rational basis for allowing compensation for blood, sperm, and egg donations, while disallowing compensation for bone marrow donations. But apheresis is not encompassed by the act, he said, since “none of the soft, fatty marrow is donated, just cells found outside the marrow, outside the bones, flowing through the veins.”

The plaintiffs in the case were represented by the libertarian Institute for Justice, based in Washington, D.C. Jeff Rowes, a senior attorney there who was the plaintiff’s lead counsel, predicted that en banc review would be denied.

“It is unlikely that rehearing will be granted because this was the first time any appellate court in the country applied NOTA to compensated marrow donation, and so there is no prior 9th Circuit opinion that the December 1 decision conflicts with.  And the unanimous panel opinion did away with an irrational rule that was costing lives for no good reason:  The public interest demands that the court let this decision stand,” Rowes said.


Copyright 2012, Metropolitan News Company