IJ’s Bone Marrow Case: History of NOTA

Yesterday, I sketched the legal theory behind the Institute for Justice‘s challenge to the National Organ Transplant Act of 1984 in which our clients seek to strike down the provision that makes it a serious crime to compensate bone marrow donors.

Today, I’d like to explain the history of NOTA and why the inclusion of bone marrow in the statute is so irrational as to render that part of the law unconstitutional.  This history will set up my posts tomorrow and Thursday in which I’ll discuss the applicable standard of review (rational basis test) and how judges should judge.  I will specifically take on the view, expressed in some of the comments yesterday, that in cases like this, government power should be limited only by the ability of judges and government lawyers to dream up “conceivable” justifications for deprivations of liberty, even if those imaginary justifications have literally nothing to do with what the legislature intended.

We know from 1,500 pages of detailed legislative history why NOTA was passed.  NOTA is the result of a wonder-drug called cyclosporine (a protein found in a Norwegian soil fungus) that can prevent the immune system from attacking a donated organ as a foreign invader such as bacteria.  In short, cyclosporine made widespread organ transplantation possible.

The FDA approved cyclosporine in 1983 and suddenly the big obstacle to organ transplants—especially for tens of thousands on kidney dialysis funded by the federal End-Stage Renal Disease program—was the shortage of organs.  The media was filled with pleas from celebrity spokespeople like Gary Coleman of the sitcom Diff’rent Strokes (a kidney recipient), which transformed organ shortages into a major public issue.

Various committees of the House (led by then-Rep. Al Gore) and Senate held hearings between the summer of 1983 and spring of 1984.  The big issues were how to pay for cyclosporine, who would get it, how to allocate donor organs, which were treated as a scarce national resource to be distributed according to federal priorities, and whether organ transplantation should still be considered experimental (this made a difference to Medicare and private-insurance reimbursement).

In addition to these issues, Congress also focused on organ selling.  H. Barry Jacobs (a Virginia doctor who’d lost his medical license after a mail-fraud conviction in 1977) decided to broker kidney sales between donors he would bring in from the developing world and rich Americans.  This was a plausible business model because everyone has two kidneys, but needs only one, and matching kidney donors and patients is medically easy, just like matching blood donors and patients.

No one liked Jacobs’ idea.  Testimony in both the House and Senate was almost uniformly against kidney sales and markets in other organs.  Congress didn’t like that kidney surgery is invasive (and was perceived as very risky), that donated organs don’t regenerate, and that organs would move only from the poor to the rich.  Congress also believed, naively in retrospect, that altruistic organ donors would be so numerous that organ shortages would not occur.

Congress, however, didn’t intend to criminalize compensation for renewable things.  For example, the bill President Reagan signed on October 19, 1984 went to his desk with a Conference Report prepared jointly by the House and Senate.  This report stated that the “term ‘human organ’ is not intended to include replenishable tissues such as blood or sperm.”  Conf. Rep. No. 98-1127 (Oct. 2, 1984).

But bone marrow is “replenishable” and none of the concerns that motivated Congress to ban organ sales applies to marrow.  Marrow isn’t an organ or a tissue.  It’s just immature blood cells.  Getting these renewable cells is safe (most donations now occur using the same equipment for donating blood plasma or platelets).

In fact, marrow was never discussed in the NOTA hearings.  We have contacted people who were involved with NOTA’s drafting and no one knows why marrow is in the statute.  Our working hypothesis is that a staffer plugged bone marrow into one of the later drafts because marrow is something that in common parlance gets “transplanted” (patients actually get donated marrow cells the same way they get donated blood: through an IV in the arm).

In other words, as I said yesterday, defining “bone marrow” as a “human organ” is not the result of Congress making a hard choice or drawing an imperfect line.  It was sheer error, but an error so significant that it renders part of NOTA irrational and, hence, unconstitutional.

Let’s turn to economics for a minute.  Not only are marrow cells totally different from the solid organs that Congress was worried about, the relief we seek in our constitutional challenge won’t create the sorts of markets Congress was worried about, either.  The basic reason is that it is incredibly hard to match marrow donors and patients (much, much harder than in the organ context).  If donors and patients don’t match at a deep genetic level, the donated marrow will kill the patient or cause a lifetime of intense suffering.

The only practical way to match marrow donors and patients is for doctors to search a national database of about seven million potential donors (mostly blood donors who’ve agreed to be on the list).  If a donor pops up as a match (and if the donor can be found and is willing), the donation occurs anonymously.  Thus, a marrow donor couldn’t go on EBay, for example, and sell marrow because the odds are infinitesimal that a patient would ever need that marrow type, much less need it right now.  (A kidney EBay, on the other hand, would be very effective at matching donors and patients).

It is so hard to match marrow donors and patients that even with a seemingly huge national registry of potential donors, Caucasians find an unrelated donor only 75 percent of the time.  Hispanics and Asians find a donor less than half the time.  African-Americans find a donor only a quarter of the time.  Patients of mixed racial heritage, whose numbers increase every day, face the longest odds.

Our clients don’t want to tackle this shortage with an open market.  They simply want a charity to be able to use funds raised from third parties to compensate donors with a scholarship, housing allowance, or charitable gift.  The goal is to get more people to sign up to the national database, get more people to stay in touch with it when they move, and get more people to follow through with donation if they’re ever asked to donate.  Donors and patients will still remain anonymous and no transaction will occur between them.

Thus, there is no rational basis (and no discernable legislative intent) for applying NOTA—which is about banning open markets in nonrenewable organs that require invasive surgery to procure—to our clients, who want to use a charity to incentivize the donation of marrow—which is not an organ, and is renewable and safe to procure—in a context in which no open market will exist.

Tomorrow: taking on the rational basis test.