Court asked to reconsider ruling on bone marrow compensation

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The Obama administration has asked a federal appeals court to reconsider its decision last month to allow compensation to people donating bone marrow cells harvested from their bloodstreams.

In a petition for rehearing by the full U.S. 9th Circuit Court of Appeals, Atty. Gen. Eric H. Holder Jr. argued that the court ignored the intent of Congress to shield all organ sales from ‘market forces’ when a three-judge panel ruled unanimously on Dec. 1 that marrow cells collected from blood aren’t covered by the 1984 National Organ Transplant Act.

Congress amended that statute in 2005, after the less-invasive bloodstream harvesting of marrow was in widespread use. It clearly intended that such harvesting also be covered by the ban on organ sales, Holder said in the government’s appeal, which was filed with the San Francisco-based court Tuesday.

Jeff Rowes, the Institute for Justice lawyer who successfully argued the case for compensation on behalf of a group of cancer patients, their families, a transplant surgeon and the California group MoreMarrowDonors.org, said he doubted the 9th Circuit would grant an 11-judge rehearing because the three-judge opinion was unanimous and doesn’t conflict with other case law.

MoreMarrowDonors.org wants to begin a pilot project to attract new members to a national bone marrow registry by offering up to $3,000 in scholarships, housing payments or charitable donations to volunteers whose bone marrow is a promising match for one of the thousands waiting for life-saving transplants.

In its ruling last month, the 9th Circuit panel said bone marrow cells filtered from the donor’s bloodstream were blood parts, which can be sold legally, not organ parts covered by the 1984 ban. That law was enacted when bone marrow donation involved a surgical extraction through needles inserted into the spongy marrow in hip bones -- a painful procedure legislators feared would be disproportionately endured by the poor if financial inducement were allowed.

‘Congress has not distinguished between donations of cells from fatty tissue and donations of cells from peripheral blood,’ Holder said in the appeal. ‘The panel fundamentally erred in creating a distinction that undermines the scheme created by Congress.’

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-- Carol J. Williams