Selling Your Marrow

A suit was filed yesterday by The Institute for Justice over bone marrow compensation:

MoreMarrowDonors.org wants to award the most needed bone marrow donors a $3,000 scholarship, housing allowance, or gift to the donor’s favorite charity. But the National Organ Transplant Act (NOTA), 42 U.S.C. § 274e, treats giving a scholarship to a college student for donating marrow like black-market organ-selling. This makes no sense. NOTA was enacted to criminalize markets in nonrenewable solid organs, such as kidneys. Bone marrow, however, is just immature blood and, like blood, replenishes itself after donation.

NOTA’s criminal ban, which imposes up to a five-year sentence, violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells such as blood, sperm, or eggs for which compensated donation is legal. The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Megan has a good post on the suit. Virgina Postrel criticizes:

I do take issue with the idea that bone marrow should be exempt from the federal prohibition because, like blood or sperm (but not eggs), it regenerates. The same is functionally true of kidneys, where the remaining organ grows to take up the slack; liver lobes also regenerate.