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Appeals court stands united on compensation for bone marrow donors

March 27, 2012 | 12:16 pm

Displaying rare unanimity on an issue, the full U.S. 9th Circuit Court of Appeals on Tuesday rejected a request by the federal government that it reconsider a ruling that most bone marrow donors can be compensated for providing life-saving marrow stem cells from their blood.

A three-judge panel of the appeals court ruled on Dec. 1 that the process of harvesting marrow cells by filtering a donor's blood wasn't covered by the 1984 National Organ Transplant Act's prohibition of payment for organs or organ parts. The statute was enacted by Congress before the blood-filtering process was developed and donors were subjected to painful and medically risky surgical extraction of marrow by insertion of a siphoning needle into the hip bone. Compensation for that form of donation remains illegal.

Atty. Gen. Eric H. Holder Jr., on behalf of the federal government, petitioned the court in January for a new hearing by an 11-judge panel. Department of Justice lawyers argued that the December ruling ignored the clear intent of Congress to prevent money from influencing donation decisions.

The 9th Circuit panel said in its latest ruling that all 25 active judges on the court were informed of the government's request and none called for a vote on it, signaling their agreement with the December decision. That unusual accord among the judges who span a broad ideological spectrum might also indicate that the U.S. Supreme Court will be unlikely to take the case for review.

The lawsuit challenging the ban on bone marrow compensation was brought by a group of cancer patients and their families, as well as a marrow transplant specialist and a California nonprofit organization, MoreMarrowDonors.org, aiming to expand the registry of available donors by offering up to $3,000 in housing assistance or scholarships for promising genetic matches.

Violation of the organ transplant act's prohibition on sales of organs or parts thereof carries heavy fines and up to five years in prison. The 1984 act defined bone marrow as an organ part, while the 9th Circuit's ruling said it was a blood part and not subject to the ban on compensation.

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--Carol J. Williams 

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