Single mother of five, Doreen Flynn, as well as cancer patients around the country can now rejoice.
Attorney General Eric Holder, as of June 25, declined to seek Supreme Court review of an appeals court decision which unanimously ruled that the sale of bone marrow donations is not illegal.
On December 1, 2011 the three-judge panel of the 9th Circuit Court of Appeals ruled in Doreen Flynn at al. v. Holder that the 1984 National Organ Transplant Act (NOTA), which bans the sale of organs, doesn’t apply to compensating certain bone marrow donors.
The judges’ logic are rooted in the fact that NOTA does not cover compensating marrow donors since the marrow cells donated are acquired from the blood with modern technology such as plasma and platelets.
Since Congress did not outlaw compensation regarding blood components, the court stated it could not have meant to outlaw compensation for marrow cells.
The suit was brought on by the libertarian-minded law firm Institute for Justice as well as the California non-profit group MoreMarrowDonors.org.
MoreMarrowDonors.org is a site that seeks to increase the voluntary contributions of bone marrow by offering individuals incentives such as small scholarships, housing allowances, or gifts to charity.
“This decision will not only save lives, but also reinforce the principle that doctors and patients should have the freedom to make their own choices when confronted with deadly diseases,” said Jeff Rowes, a senior attorney with the Institute for Justice and lead counsel on the case.
Three of Doreen’s daughters have Fanconi anemia, which is an inherited type of anemia that can lead to bone marrow failure.
The video covering Flynn’s story entitled “A Mother’s Fight: Mom fights to reimburse marrow donors” can be seen here.
Around the time when the case was being argued, Holder and the Department of Justice saw it differently.
They contended that allowing bone marrow to be subjecting to market forces the prices would rise and weaken voluntary contributions.
However, an article appearing in the Library of Economics and Liberty on March 5, 2012, by Kathryn Shelton and Richard B. McKenzie, How Free-Market Kidney Sales Can Save Lives—And Lower the Total Cost of Kidney Transplants, debunks the logic of Holder and the DOJ.
Finally, individual autonomy prevailed.
“Our goal is to try something new to see if it saves lives. We will continue our fight as long as senseless legal restrictions prevent people from taking commonsense steps to help those desperately in need of lifesaving bone marrow,” said Shaka Mitchell, president of MoreMarrowDonors.org.
Editor’s notes: An interesting take on this debate emerged last year when a Scottish academic promoted the idea of students selling their kidneys to pay off student loans. Of course, when pressed, she admitted that she would never allow her children to do it since she has plenty of money.
One interesting perspective on this emerged when I was being interviewed recently on Proof Negative’s radio show. Proof’s co-host Valerie Martin proposed something which I, personally, think could be quite effective.
Martin posited that instead of attempting to control peoples’ health through the banning of sodas or other ludicrous measures, health could be encouraged through allowing individuals to sell their organs after death.
Personally, I believe that this could work quite well and while I don’t believe that people should go out and sell their organs right now, I do believe that we should have full and complete control over our bodies. After all, if we can’t have control over our own bodies, what can we control?
Edited by Madison Ruppert
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