Federal Court refuses to reconsider bone marrow donor payments

By Dr. Ananya Mandal, MDMar 29 2012

According to a federal appeals court it would not reconsider a ruling that allows bone marrow donors to be paid for their donations like blood donors.

In December, the 9th U.S. Circuit Court of Appeals overturned a decades-old government practice that made such compensation a crime. The court said a technological breakthrough makes the process of donating bone marrow nearly identical to giving blood plasma.

The Dec. 1 ruling by a three-judge panel redefined bone marrow cells harvested from a donor's bloodstream as blood parts, not organ parts. Filtering the stem cells from a donor's blood through a process known as apheresis is how most marrow donations are collected now, but it hadn't been developed yet when the 1984 National Organ Transplant Act deemed marrow and its parts to be organs and covered by the law's ban on compensation. The 1984 act of Congress was intended to prevent wealthy patients in need of a transplant from luring the poor into submitting to a painful and risky procedure to make money.

Three years ago, after the less intrusive donation method was in widespread use, a group of cancer patients and their families, a bone marrow transplant surgeon and a California non-profit proposing a pilot project for compensation filed a lawsuit challenging the definition of marrow cells as organs. The lead plaintiff in the case is Doreen Flynn of Lewiston, Maine, a single mother of five who is trying to ensure that a broader field of potential donors is available when her three daughters who suffer from Fanconi anemia need marrow transplants after surgery for the potentially fatal genetic disorder.

This Tuesday the court further declined the Obama administration's request to reconsider the ruling. The administration now has 90 days to petition the U.S. Supreme Court.

Department of Justice spokesman Charles Miller says the administration is reviewing its options.

The non-profit patient advocacy group Institute for Justice called the original ruling a “major national shift in bone marrow donation policy” and said payments will encourage more donations.

The U.S. solicitor general has 90 days to decide whether to seek U.S. Supreme Court review.