Should Bone Marrow Donors Get Scholarships?

A new lawsuit argues that banning compensation for bone marrow is unconstitutional

Should bone marrow donors get compensation? A nonprofit group is suing for the right to give donors scholarships, housing allowances, or donations to the donor's charity of choice. Represented by the Institute of Justice, MoreMarrowDonors.org is arguing that a ban on marrow compensation costs lives and is unconstitutional.

The debate revolves around a perceived irrationality in the current system: banning organ sales is meant to discourage people from harming their health and bodies for money. Yet people are free to sell blood, sperm and eggs. Like blood, bone marrow regenerates, so why shouldn't compensation also be allowed? Here are the arguments:

• Life vs. Compensation  At Below the Beltway, Doug Mataconis echos a standard point in the organ compensation debate: "If compensating donors will mean more people live, what could possibly be wrong with it?"

• I'm All for More Scholarships  The New York Times' Ian Ayres points out that the group in question is suing merely to be able to reward donors with a scholarship or a gift to a charity of their choice. His take:

I’m not sure if NOTA is unconstitutional. It’s pretty hard to convince a court that a statute is unconstitutionally irrational. But I’m pretty sure the United States would be a better place if MoreMarrowDonors.org could offer college scholarships without ending up in jail.

• Why the Ban is Unconstitutional: Violates Equal Protection  Jeff Rowes of the Institution for Justice explains his clients' case: The fact that there's no rational reason for the inclusion of bone marrow in the ban "means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment." Furthermore, "throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts."
  

• Currently, Minorities Suffer  Megan McArdle points out that bone marrow donors and recipients need to be matched even more carefully than other transplant candidates. "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 [Institute for Justice]. That's compared to 75% for whites." She agrees that including bone marrow in the ban, given its ability to regenerate itself, probably doesn't make much sense. If selling bone marrow, she says, is "really so awful and demeaning, then probably we shouldn't pay for plasma, eggs, or sperm, either."
  

• Regeneration of Bone Marrow the Wrong Argument  Virginia Postrel raises an objection to the argument, although she, too, favors legalization: "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, [for which compensation is illegal] where the remaining organ grows to take up the slack; liver lobes also regenerate."