IJ Files Suit Against AG to put an end to a ban on offering compensation to bone marrow donors.

October 28th, 2009

The Institute for Justice filed the first ever suit challenging the ban of the National Organ Transplant Act (NOTA) of 1984. Check it out here.

The National Organ Transplant Act (NOTA) of 1984 treats compensating marrow donors as though it were black-market organ sales.  Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow could land everyone—doctors, nurses, donors and patients—in federal prison for up to five years.

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.  A victory in this case will not only give hope to thousands facing deadly diseases, but also reaffirm bedrock principles about constitutional protection for individual liberty.”

Chip Mellor, president and general counsel of the Institute for Justice said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die.  The Institute for Justice intends to stop that and to restore constitutional constraints that prohibit arbitrary limits on individual liberty.”

This is the first time NOTA has ever been the subject of a constitutional challenge.

As usual IJ finds a fantastic, and sympathetic plaintiff:

Every year, 1,000 Americans die because they cannot find a matching bone marrow donor.  Minorities are hit especially hard.  Common sense suggests that offering modest incentives to attract more bone marrow donors would be worth pursuing, but federal law makes that a felony punishable by up to five years in prison.

Doreen Flynn, a single mother of five children from Lewiston, Maine, joined with the Institute for Justice in filing suit.  She is a compelling example of the courage and determination parents must exhibit when their children are struck with a deadly blood disease.  Three of Doreen’s daughters have Fanconi anemia, a serious genetic disorder whose sufferers often need a bone marrow transplant in their teens.

Flynn said, “Saving lives through bone marrow donations starts with donors.  Without them, the only outcome for those in need is death.  We should do everything reasonable within our powers to encourage people to donate.  The government must recognize the reality of those facts and stop standing in the way.”

Joining Flynn in the lawsuit is Dr. John Wagner, an internationally recognized expert in marrow cell transplantation at the University of Minnesota.  He has treated thousands of patients in need of marrow transplants, and he has been forced to watch hundreds of them die after they were unable to find a matching donor.  He believes it is time to try the most promising strategy for bringing in more donors—providing potential donors with an incentive to donate.

Note. For purposes of full disclosure, I am an IJ fan and have attended several of their law student conferences.