Ruling eases marrow donations

A federal law banning compensation for organ transplants doesn’t extend to bone marrow harvested from a donor’s blood, a federal appeals court said Thursday in a ruling that could attract thousands of new donors in a national campaign to save the lives of those afflicted with cancer, leukemia and genetic disorders.

The 1984 National Organ Transplant Act included bone marrow in its list of “organs and parts thereof” for which donors could face criminal charges and five years in prison for providing in exchange for money or other “valuable consideration.”

Although bone marrow is naturally replenishable, unlike livers, kidneys and other whole organs, its sale was barred because the extraction method used at the time the law was passed was painful and risky for the donor and authorities feared the poor would be induced to submit to the procedure to earn money.

In the last 20 years, though, medical advances have brought about a less intrusive method by which the life-saving marrow stem cells are harvested from a donor’s bloodstream in much the same way as blood is drawn at a blood bank.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the marrow cells taken from a donor’s blood were blood parts, not organ parts, and that a donor is therefore free to accept compensation for a donation.

“This is a fundamental change to how deadly blood diseases will be treated in the country,” said Jeff Rowes, the attorney who argued the case before the 9th Circuit panel in February. “Compensation will expand the donor pool by at least hundreds and potentially thousands each year.”

More than 3,000 Americans die each year waiting for a suitable marrow donor, Rowes told the court, representing a group of cancer patients and their families, a Minnesota doctor specializing in bone marrow treatments and the California nonprofit MoreMarrowDonors.org.

The lead plaintiff in the case is Doreen Flynn, of Lewiston, Maine, a single mother of five trying to ensure that a broader field of potential donors is available when her three daughters suffering from Fanconi anemia need marrow transplants after treatment for the potentially fatal genetic disorder.

MoreMarrowDonors.org wanted the organ transplant law struck down or amended to allow the nonprofit to offer $3,000 scholarships or housing payments to attract new registrants to the National Marrow Donor Program. The registry has more than 7 million members, but many joined years ago during donor drives for friends or family members and are often reluctant to donate to a stranger.

Although the extraction procedure has been greatly simplified, it remains difficult to find the right genetic match between donor and recipient, the plaintiffs argued. Unlike blood, of which there are only four types, marrow comes in millions of types.

Justice Department spokesman Charles S. Miller said the government hasn’t decided yet whether to appeal.

The 9th Circuit interpretation applies to its nine-state jurisdiction, which includes Washington and Idaho. But because it is the only federal appeals court to have ruled on the question, its judgment could guide future decisions nationwide.