I’ve written a fair amount about organ transplantation in the past (for example, here and here). But it was only in reading SuperFreakonomics that I learned that “the Iranian government [pays] people to give up a kidney, roughly $1,200, with an additional sum paid by the kidney recipient.” The book also tells the story of our own country’s brief flirtation with donor compensation:
In the United States, meanwhile, during a 1983 congressional hearing, an enterprising doctor named Barry Jacobs described his own pay-for-organs plan. … His most vigorous critic was a young Tennessee congressman named Al Gore, who wondered if these kidney harvestees “might be willing to give you a cut-rate price just for the chance to see the Statue of Liberty or the Capitol or something.”
Congress promptly passed the National Organ Transplantation Act [NOTA], which made it illegal “for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation.” (p. 112)
NOTA’s criminal prohibition of donor compensation has now just been challenged in a lawsuit filed by the Institute for Justice. On October 28, a group of plaintiffs (including people with deadly blood diseases) sued Attorney General Eric Holder, claiming that the criminalization of compensation violates their equal protection rights. The suit does not challenge the general ban on organ sales but argues that the application of the ban to renewable tissue is arbitrary and irrational:
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. … 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.
(Here’s a link to the full complaint.) You can hear the plaintiffs tell their story in this video:
The suit is also joined by MoreMarrowDonors.org, a California nonprofit that “intends to use privately contributed charitable funds to reward the most needed donors, especially minorities, with a $3,000 scholarship, housing allowance, or gift to the charity of the donor’s choice.”
A lot turns on this classic question of economics and ethics. Plaintiffs say that “[e]very year, 1,000 Americans die because they cannot find a matching bone marrow donor.” Plaintiff physician John Wagner says that of the 2000+ patients he has treated in need of bone marrow transplants, at least 20 percent “have died because they have been unable to find a matching bone-marrow donor.” 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.” Rowes is guest blogging about the case this week at The Volokh Conspiracy.
I’m not sure if NOTA is unconstitutional. It’s pretty hard to convince a court that a statute is unconstitutionally irrational. But I’m pretty sure the United States would be a better place if MoreMarrowDonors.org could offer college scholarships without ending up in jail.
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Very interesting. Thanks! I actually donated bone marrow this past Thursday and of course I didn’t get paid and don’t even know the recipient. I read SuperFreakonomics during the process since it takes 5 hours and is very boring. I sent a picture of me with the book with the blood flowing from my body to Levittt and Dubner. It helped me get through the process.
I thought the complaint should have argued that the categorization choice by Congress has the effect of condemning people to death and that this is clearly not what Congress meant because Congress may not so specifically deprive people of life. Congress clearly doesn’t have the power to require that people with certain conditions die. I think an equal protection argument might not be necessary then but one could be hung on the idea that this kind of condition is singled out to become a death sentence for a definable, identifiable group of American citizens.
Any law has an effect. A 70 mph speed limit has the effect of killing more people than a 55 mph limit but that kind of law would affect all drivers, all people on roads, while this specific categorization affects a specific class of people out of all others and specifically condemns a portion of them to die.
Wouldn’t the ‘emanation’ from the ‘penumbra’ of the 4th Amendment preclude the government from outlawing organ sales, a la Roe v. Wade? In other words, isn’t it a medical privacy issue?
And if not, wouldn’t it follow that it’s Constitutional for a state to outlaw the payment for an abortion?
Bone marrow is renewable but the procedure itself requires at least a week of repair. Is far from pleasant, and yes, there is anesthesia, but there are many risks associated with the administration of anesthesia. Furthermore, if a person gives bone marrow say, a few times a month. There could be a great deal of health risks.
It’s also morally repugnant that healthy people who need money are giving unhealthy people who have deadly diseases temporary life. Even if a kid is cute, if the kid of leukemia, I don’t think that sucking the marrow from the living is a good or legal conscription.
Aren’t the prohibitions designed to prevent illegal harvesting of body parts from unwilling donors? Just the thought of bone marrow theft makes my skin crawl.
But how else are the poor going to earn money?
In response to post #4, “It’s also morally repugnant that healthy people who need money are giving unhealthy people who have deadly diseases temporary life.”
How exactly is this morally repugnant? This seems like a classic case of supply and demand. There is demand (from the “unhealthy people who have deadly diseases”), and there is a plentiful amount of supply (from the “healthy people who need money”). I know I wouldn’t be breaking my moral code if I was able to supply a person with a little extra life, and at the same time make a little money. This sounds like a “win/win” situation to me.
Besides, who am I to tell a person that they should not use advances in medical technology to extend their life, even if for only a short amount of time. After all, there are several meaningful events that can happen in that short period of time (birthdays, medical advances, etc.).
“It’s also morally repugnant that healthy people who need money are giving unhealthy people who have deadly diseases temporary life.”
Really? Doesn’t your statement basically define a Doctor’s occupation? Doctors need money, so they spend their life helping people with deadly diseases have a temporary life.
I guess doctors are all “morally repugnant”, or maybe just the ones who treat people who have “deadly diseases”?