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With all eyes fixed on the Supreme Court’s recent health-care decision, a life-saving development swooped in under the radar: It is now legal to compensate bone-marrow donors. This represents a triumph for the 2,000-3,000 people with cancer and blood diseases who die each year while awaiting a marrow transplant.
Efforts to challenge the federal ban on compensating marrow donors began three years ago, led by the Institute for Justice, a public-interest law firm. The firm’s clients were families afraid their ill loved ones would die because they couldn’t get a transplant.
Last December, the U.S. Court of Appeals for the Ninth Circuit ruled unanimously in their favor. Pivotal to the judge’s decision was that modern bone-marrow donation is accomplished through a process called apheresis, through which doctors filter bone marrow stem cells from blood drawn from a donor’s arm. The process takes several hours.
The apheresis technique did not exist in the early 1980s, when the law banning organ sales (the National Organ Transplant Act of 1984) was drafted. At the time, marrow donation was arduous, involving anesthesia and large hollow needles for extracting marrow directly from a donor’s hip bone.
Now that apheresis makes donating marrow cells akin to giving plasma, which can already be paid for under the 1984 law, the court saw no logical basis for disallowing payment for it.
Last week, Attorney General Eric Holder declined to ask the Supreme Court to review the Ninth Circuit’s decision, so it stands—and people who donate through apheresis can be legally compensated.
Now people like Shaka Mitchell can get to work. He’s president of MoreMarrowDonors.org—a nonprofit group also represented by the Institute of Justice in the suit—that plans to encourage donations with a $3,000 scholarship, housing allowance, or gift to a charity of the donor’s choice.
Strangers aren’t indifferent to the plight of people suffering with leukemia, breast cancer or severe blood illnesses. More than nine million people have responded to marrow drives, had their cheeks swabbed for DNA samples, and registered as potential donors, according to the National Marrow Donor Program, which maintains the federally funded bone-marrow registry.
“Strangers aren’t indifferent to the plight of people suffering with leukemia, breast cancer or severe blood illnesses.” -Sally Satel
But finding matches is tricky. Biological incompatibility disqualifies most registrants. And among the precious few who are good matches for dying patients, dropouts are a common problem.
Sometimes the national registry loses track of donors. And nearly half of the matching donors it does locate refuse to go through with the procedure when faced with the reality. So the hunt for another donor must resume, a delay some patients don’t survive.
Mr. Mitchell’s incentives should encourage more people to register, stay in touch, and follow through. “Now we can start to market ourselves and raise the funds we need to subsidize the scholarships and other incentives,” he told me from his home in Nashville, where he practices law and teaches. He also wants academic researchers to help his organization design a pilot trial to analyze the impact of incentives.
Amazingly, the strongest opposition to Mr. Mitchell comes from the National Marrow Donor Program, whose very job is to advocate for patients in need of transplant. “We oppose reimbursing donors,” says Michael Boo, chief strategy officer with the program. “Is that what we want people to be motivated by?”
Mr. Boo’s organization refuses to list any prospective donors who have been promised compensation. And it might even try to get Congress to amend the law and specifically prohibit compensating apheresis donors.
All this presents a long overdue opportunity to rethink the philosophical underpinning of the nation’s transplant policy. For decades, desperate transplant patients and their loved ones have been captive to the ethical fiction that donating for free is noble while accepting compensation is sordid or undignified.
Altruism is a beautiful virtue. I learned this firsthand when I needed a kidney several years ago and a magnificent friend gave me one of hers. But demanding that altruism be the only permissible motive for giving marrow (or any organ) causes thousands of needless deaths each year.
The desire to do well by others while enriching oneself is a great engine for good. Now that we can compensate bone-marrow donors, it is time to demonstrate the power of incentives to save lives.
Dr. Satel is a resident scholar at the American Enterprise Institute. Along with James. F. Childress of the University of Virginia, she submitted an amicus brief in Flynn v. Holder.
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