SAN FRANCISCO — A federal appeals court ruled Thursday that most bone marrow donors can be paid, overturning the government's interpretation of a decades-old law making such compensation a crime punishable by up to five years in prison.
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In its ruling, the 9th U.S. Circuit Court of Appeals said a technological breakthrough makes donating bone marrow a process nearly identical to giving 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.
The unanimous, three-judge panel of the court did say it remains a felony to compensate donors for undergoing an older transplant method, which extracts the marrow from the donors' bones.
But the court said the new technology isn't covered by the law because actual bone marrow isn't taken from the donor. Instead, specialized cells that grow into marrow are taken from a donor's bloodstream, and it's basically a blood donation, not an organ transplant, the court said. It noted that two-thirds of bone marrow transplants employ the newer process.
Tens of thousands of people with leukemia, lymphoma and other blood diseases are saved each year by such procedures. An estimated three thousand others die waiting for donations, which unlike simple blood donations need to be genetically compatible, making matches especially difficult for African Americans.
Advocates for paying donors said compensation will spur even more donations. Detractors argue that donor compensation will exploit the poor to undergo risky medical procedures to benefit the wealthy.
The National Marrow Donor Program, the nonprofit that provides transplants from volunteers, opposes payments.
"We were surprised and puzzled by the appellate court's decision regarding allowing compensation," said Michael Boo, the program's chief strategy officer. "The National Marrow Donor Program is studying the decision and assessing the impact. We do not anticipate the ruling will change the NMDP's current policies and practices."
The ruling overturns a lower court decision barring compensation for all bone marrow donations.
The lawsuit was filed by lawyers at the nonprofit Institute for Justice, representing a coalition of patients, doctors and MoreMarrowDonors.org, which is seeking to offer donors $3,000 in the form of a scholarship, housing allowance or gift to charity.
A plaintiff in the lawsuit, Kumud Majumder, said his 11-year-old son, Arya, died of leukemia last April.
The family had resorted to an imperfect bone marrow donor match in desperation because no perfect match was available, the father said at a news conference outside the circuit court's Pasadena chambers
"Arya's tragedy happened in part because of a lack of bone marrow donors," Majumder said. "In the end, creating more and better bone marrow donor matches through a system of modest compensation will save the lives of patients, improve the lives of donors, drive down the costs of treatment and improve the quality of life of cancer patients as they battle to survive."
At the heart of the court's ruling, which is sure to ignite renewed debate over paying medical donors, are two processes for transplanting bone marrow into patients suffering from diseases of the blood.
The first and older one is known as "aspiration" and requires the donor to endure painful and risky procedures that require hospitalization and anesthesia. Long, thick needles are inserted into the cavities of the donor's hip bones to suck out the bone marrow. The court said that process was still covered by the National Organ Transplant Act, which explicitly prohibits paying donors for their bone marrow.
"The point of the ban on selling organs is to protect people from ignoring the medical risk for money," said Arthur Caplan, a bioethicist with the University of Pennsylvania. Caplan said the ruling Thursday may unintentionally support campaigns to pay donors in other medical fields such as compensating women for their eggs.
The newer procedure, which the court ruled exempt from the act, was developed about 20 years ago and involves harvesting cells from the bloodstream rather than in bone. Called "apheresis," the procedure requires the donor to undergo five days of drug injections to stimulate production of specialized blood cells. Then the donor sits in a recliner for several hours while the blood is filtered through a machine that extracts the specialized cells.
"Congress could not have had an intent to address the apheresis method when it passed the statute, because the method did not exist at that time," Judge Andrew Kleinfeld wrote for the court. "We construe '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."
Kleinfeld said it may be time to apply a new label to the process.
"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," Kleinfeld wrote.
The decision won't become official for at least 30 days while the U.S. Department of Justice ponders what to do next. The DOJ can ask the appeals court to reconsider the decision or petition the U.S. Supreme Court to take it.
DOJ spokesman Charles Miller said the department is reviewing its options.
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