While people can be paid to donate blood, sperm and eggs, it's illegal to pay organ donors. A recent lawsuit in federal court is challenging that by starting a compensation program for bone marrow donations.

Such a program would help many sick people by increasing the supply of bone marrow. But an ethical question is raised: Do we want to create a market for human body parts?

The Lawsuit

Recently, the Institute for Justice (IJ) and patients suffering from blood diseases filed a lawsuit against Attorney General Eric Holder Jr., asking that he stop enforcing the federal criminal prohibition on paying organs donors. This prohibition is contained in the National Organ Transplant Act (NOTA) of 1984.

The IJ and the patients argue that preventing people who need bone marrow transplants from offering payment to donors violates the Due Process Clause of the Fourteenth Amendment to the US Constitution.

Why Allow Payment for Bone Marrow?

Many people suffering from diseases such as leukemia desperately need bone marrow. However, most need to wait for donations, which can take years. Allowing people to be paid for donating bone marrow would benefit many sick people and society in general.

Furthermore, bone marrow, like blood, is a renewable resource. It regenerates, so it makes sense for the law to treat marrow more like blood or sperm than kidneys and other organs. In addition, while bone marrow donations may be somewhat unpleasant, they aren't very risky. So even if people donate bone marrow simply to make some money, supporters argue it would still benefit society.

Why Does the Government Ban Payment for Organs?

There are several legal and ethical considerations why the government bans the sale of bone marrow:

  • Paying donors might compromise safety and quality, according to the National Marrow Donor Program. If people are motivated by money to donate, it may compel them to withhold personal information important to the receiver, such as sexual activity or drug use
  • The poor will be especially vulnerable. Money could motivate them to do something dangerous because they are desperate for cash
  • Policy and ethical considerations: Is our society ready to have a market for organs?

Legal Basis for Suit: Due Process

The argument in this case is that refusal to allow payment for organs violates the Constitution. For the law preventing payment to organ donors to continue under the Due Process Clause, it must have a rational relationship to a legitimate government interest.

The IJ and patients argue it's irrational to interfere with medical care and preventing organ donor payment therefore violates the Due Process Clause. They argue that people have a right to pursue needed medical treatment, and an important way of doing this is by offering money.

But, would poor people who couldn't afford transplants ever get one? Would it stop illegal kidney harvesting?

Rational Basis?

Typically, courts are extremely respectful to medical decisions. The Supreme Court generally applies a rational basis review to laws regulating medical practice, even though such laws can have a large impact on health and life. Under this test, the court is likely to find bone marrow donation enough like organ donation to satisfy the minimal requirements of Due Process.

However, the court could take a different approach. It could decide that people have a fundamental right to life-saving treatment. This would require the law pass a stricter test. To be upheld, the law must be narrowly tailored to promote a compelling government interest.

Under this test, the court would likely rule that prohibiting payments for bone marrow substantially hinders an individual's right to treatment. The law may be struck down under the strict scrutiny test because prohibiting payment may not be a narrow enough means of promoting the government's interests.

This case is the first time NOTA has ever been challenged over its provision prohibiting payment for organ donations. The decision affects patients, doctors and society in general.

Questions for Your Attorney

  • Can I compensate someone for their organs if we are outside the US?
  • If I received compensation for donating an organ, can I go to jail?
  • Does insurance cover donation costs?

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