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Bone marrow donors can be compensated, appeals court rules

December 1, 2011 |  2:59 pm

In a ruling that could prevent thousands of cancer deaths each year, a federal appeals court said Thursday that a 1984 law banning organ sales doesn't extend to donations of bone marrow.

Extraction of life-saving bone marrow stem cells can now be done with a much simpler procedure than was in practice when the National Organ Transplant Act was passed by Congress 27 years ago, minimizing discomfort and risk to the donor, a three-judge panel of the U.S. 9th Circuit Court of Appeals said.

A challenge to the organ transplant act was brought last year by the families of several children suffering potentially fatal blood and genetic disorders, a Minnesota doctor specializing in bone marrow treatments and a California nonprofit group, MoreMarrowDonors.org, that wants to offer $3,000 inducements to prospective donors.

"This is a fundamental change to how deadly blood diseases will be treated in the country," said Jeff Rowes, the Institute for Justice attorney who argued the case before the 9th Circuit in February.

He predicted that thousands of people with rare types of bone marrow can now be attracted to the National Marrow Donor Program.

Like blood, bone marrow can replenish itself quickly after donation. The appeals court ruled that marrow stem cells harvested from a donor's blood stream are components of the blood, not the bone marrow, and are therefore outside the ban on organ sales.

The plaintiffs sued U.S. Atty. Gen. Eric H. Holder Jr., alleging that defining bone marrow as an organ part violated the equal protection clause of the Constitution.

The judges upheld the statutory ban on bone marrow harvested through the more painful and risky procedure involving surgical extraction but said filtering out marrow stem cells from the bloodstream didn't pose the same threat of enticing poor people to submit to a daunting procedure to earn money.

The 9th Circuit ruling was the first in the nation to deem bone marrow stem cells beyond the reach of the organ sales ban, Rowes said.

Justice Department spokesman Charles S. Miller said the government was still reviewing the ruling and had not yet decided whether to appeal.

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-- Carol J. Williams

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