Filed Monday, October 26, 2009, in federal court in Los Angeles, Flynn v. Holder challenges the federal ban on compensating bone marrow donors. Represented by the Institute for Justice, the plaintiffs are cancer patients and their families, a renowned bone marrow specialist, and a California nonprofit called MoreMarrowDonors.org. 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.