I'm a big fan of the Institute for Justice, which fights the good fight on issues like economic liberty and eminent domain. Today they're launching what may be their biggest case ever: a fight to allow compensation for bone marrow donors.
For reasons that aren't entirely clear, the 1984 National Organ Transplant Act forbids people to sell their bone marrow, as well as their kidneys, lungs, and so forth. By which I don't mean that the ban is merely stupid; I mean there's apparently some reason to believe that Congress simply did this as a mistake, adding bone marrow into the bill at the last moment without really thinking things through.
Donating bone marrow is a lot more like donating blood than it is like donating a kidney, because of course, your body just makes more marrow to replace what you give up. These days, they don't even have to stick a big needle into your pelvic bone, as they used to; instead, they give you a drug to stimulate blood stem cell production and filter the cells from your blood, using the same apheresis machine that they use to harvest plasma cells from (paid) donors. The risks are extremely minimal, and mostly limited to the side effects from the drug they give you to stimulate cell production.
Nonetheless, it is very, very illegal to compensate donors. That means that people die for want of a transplant. The problem is worst in minority communities, because of the peculiar problems of marrow donation.
In most transplants, you run the risk that your body will decide that the new organ is a foreign object and send white cells to attack it; this is what's called "rejecting the organ", and it's why you have to use immunosuppressant drugs. In the case of marrow transplants, however, the problem is more serious, because marrow is what produces those white blood cells. The risk you run is that those white cells will decide that your body is a foreign object, and attack everything in sight.
That means that marrow donors have to be matched very, very carefully to the recipients--much more carefully than we match other kinds of organ donations. Since there is a strong ethnic component to the matching, minorities who need transplants have the smallest chance of finding a match--just 25%, according to the folks I spoke to at IJ. That's compared to 75% for whites.
It's true that I don't find any of the arguments about the coercive effects of money on peoples' decisions particularly compelling. But at least in the case of kidneys or parts of livers, I can see how you might want to keep people from making a very permanent sort of mistake. I just don't see that sort of rationale in the case of bone marrow. The worst that happens is that you end up with some unobtrusive round scars over the veins in the crook of your arms. There are dozens of professions that are likely to leave you with more impressive legacies. Moreover, if it's really so awful and demeaning, then probably we shouldn't pay for plasma, eggs, or sperm, either.
The purpose of this lawsuit is not to set up an actual market. There are reasons to think that you can't actually build a functioning market in bone marrow, because the number of matches is typically so small, turning every donor into a monopsonist, and every recipient into a potential monopolist. Instead, the idea is to use market incentives to increase the number of donors. Ultimately, the plan is to set up a foundation to offer some sort of modest grant for those who decide to become marrow donors. The process will remain anonymous, and the donor and recipient will never interact. Nor will the foundation negotiate.
It's a great idea. But in order to implement it, they have to get the law to the point where doing so won't get them sent to the pokey.
Of course, just because the law doesn't make any sense, doesn't mean that it will be struck down. But one can hope . . . and wish the folks at IJ godspeed.
