Paying People for Bone-Marrow-Derived Stem Cells Extracted from Blood (Not Bone) Is Legal, Rules the Ninth Circuit

Two years ago, Jeff Rowes of the Institute for Justice blogged about a case they were bringing seeking to establish the legality of paying people for bone marrow cells, notwithstanding the National Organ Transplant Act. Today, the Ninth Circuit just handed down a decision in the case, Flynn v. Holder.

The Circuit rejected IJ’s constitutional claim that the ban on paying people for providing bone marrow cells extracted from hip bones is so irrational as to violate the Due Process Clause, concluding:

[Congress’s] reasons [for the ban] are in some respects vague, in some speculative, and in some arguably misplaced. There are strong arguments for contrary views [citing Virginia Postrel, who is know to many of our readers -EV]. But these policy and philosophical choices are for Congress to make, not us. The distinctions made by Congress must have a rational basis, but do not need to fit perfectly with that rational basis, and the basis need merely be rational, not persuasive to all. Here, Congress made a distinction between body material that is compensable and body material that is not. The distinction has a rational basis, so the prohibition on compensation for bone marrow donations by the aspiration method does not violate the Equal Protection Clause.

But it accepted IJ’s statutory claim — which the government disputed — that the statute does not ban paying people for providing bone-marrow-derived stem cells extracted from their blood. From the Conclusion:

[W]hen the “peripheral blood stem cell apheresis” method of “bone marrow transplantation” is used, it is not a transfer of a “human organ” or a “subpart thereof” as defined by the statute and regulation, so the statute does not criminalize compensating the donor.

Congratulations to my friend at the Institute for Justice for this victory, which I expect will increase the number of bone marrow providers and thus save many lives. (I suspect the victory part here is more significant than the defeat part, and in any event a loss on the constitutional rational basis question was the likely outcome from the outset, since the rational basis test is so easy for the government to satisfy.) IJ, by the way, is 20 years old this year; check out this video about its history if you’re interested.

For those who have been following my arguments for a constitutional right to medical self-defense, which would include a right to pay willing providers for donations of certain organs (whether during the provider’s life or after the provider’s death), I should note that this was not IJ’s argument in this case. IJ was arguing that the law failed the rational basis scrutiny applicable to all laws, including those that don’t implicate a fundamental constitutional right, not that the law failed the heightened scrutiny applicable to laws that do burden fundamental constitutional rights.

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