“Instead of getting a felony conviction for it, you would get a gold star.”
- 9th Circuit Judge Andrew Kleinfeld, on the contrast between selling and donating bone marrow
The LA Times article “Ban on Paid Marrow Challenged” (2/21/20) tells the story of how the National Organ Transplant Act of 1984 is being challenged in the court system by plaintiffs that fault the law for contributing for a shortage of bone marrow donations through its ban on the sale of human organs for medical use. This shortage leaves many who are suffering from life-threatening illnesses like leukemia waiting in a long queue for a good match. In some cases patients expire during their wait or accept less than optimal bone marrow matches that leave their bodies vulnerable to graft-versus-host complications which can be fatal. The plaintiffs legal case may be lacking (a lower court tossed their lawsuit because it lacked legal grounds), but their grievance is eminently legitimate.
The ban originated from several considerations. Chief among those reasons was the fear that poorer Americans would be disadvantaged by the commercialization of organ donation. In particular, if organs could be bought and sold then a wealthier patient could get the pick of the litter (a better match) while a poorer patient might be forced to settle for an inferior match because the poorer patient is likely to be outbid. Alternatively, a rich man could overpay for a decently matched kidney that would have been a near perfect match for someone else. These concerns help explain the establishment of the Organ Procurement and Transplantation Network where patients are matched with organs based on compatibility and medical outlook.
By banning the sale of organs and bone marrow in the name of equal access, the government prevents a legal market from emerging and exacerbates shortages. Price controls and government rationing of goods and services generally fail because the former distort the market and the later destroys it. The ban on organ selling essentially forces the government to ration organs. Markets create incentives (a profit motive) for suppliers of goods and services to increase to supply when shortages exist. If potential suppliers are denied compensation then shortages persist.
If the ban were lifted, a dramatic increase the supply of organs would largely mitigate the potential problem of poorer patients settling for interior matches. After all, even if rich patients were to receive the pick of the litter it may not force poor patients into settling for inferior organ matches because the size of the litter is much larger. But even if dramatic inequalities in organ quality persist between rich and poor recipients, the government can impose modest regulations to ensure greater equality without destroying the market altogether through rationing.
The fears over unequal access to organ transplants are misguided, and they parallel the fears over unequal access to medical care in general. Concern over inequality in health care largely motivates those who support single-payer (nationalized) health care. In this case, it is also partly to blame for the organ rationing program that mostly succeeds in creating shortages while still allowing people to cut in line if they take extraordinary measures like organ bartering or if they are wealthy and well-connected (as some have said of Steve Jobs).
Of course, the idea of selling organs raises ethical questions. Is it proper for the law to allow poorer Americans to jeopardize their health by selling kidneys or parts of their liver for money? Perhaps not, but the idea of selling organs should still be viable because the selling of organs can be recast as a selling of rights to organs after death. Someone who may not otherwise consent to being a donor may give consent if he is compensated for his consent or if his estate or family is compensated.
However, this does not apply to bone marrow donations because they are almost always live donations and not from cadavers. The marrow donation process is highly inconveniencing for the donor because one method of extracting stem cells leaves the donor with flu like symptoms for several days and the other is surgical. Considering the level of inconvenience, shortages are not surprising.
Employees of the bone marrow registry, medical technicians, nurses, doctors, administrators, and others who participate in pairing donor marrow to recipients all receive payment. Why shouldn't someone receive modest compensation for donating marrow especially if they have to miss work?
One common answer from individuals who work for the bone marrow registry is that donating marrow is someone's duty and people should not expect to be paid. It is not without irony that there are those who receive hourly pay to register bone marrow donors yet (piously) expect others to donate their time and body parts without compensation.