Is the Ban on Selling Bone Marrow Unconstitutional?

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, 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 could offer college scholarships without ending up in jail.

David G

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.

Phreddy Tran

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.

Eric M. Jones

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"?


"It's also morally repugnant that healthy people who need money are giving unhealthy people who have deadly diseases temporary life. "

Michelle, I think that's what doctors do every day (since presumably they need their salaries). Perhaps you meant to say that unhealthy people should die? But, then, that would be truly repugnant.


Eric M. Jones,

Yeah! Lord knows they won't work!

David G

Michelle, the relatively new procedure that I did last week is not very painful and does not involve anesthesia at all. For five days leading up to the procedure I received a drug that causes the stem cells to move from the marrow into the blood. Then the procedure just involves removing the blood from one arm, filtering out what they need and putting the blood back in the other arm. I was completely fine 36 hours later and even immediately after I was pretty much OK.


Blood is also renewable, and as far as I can tell, it's still illegal to pay blood donors. (We get t-shirts and other trinkets when reaching X-gallon milestones, but nothing like cold cash.)

I can understand the motivation to encourage more marrow donations - donations really do save lives. It is tragic, selfish or out of ignorance that more people do not donate until a crisis occurs. Remember how much blood was collected the days following 9/11, yet was thrown away because there were so few survivors?

But the idea that some group will pay a $3000 scholarship for a young person's bone marrow is chilling. Where does it stop? How much for a unit of whole blood? What about platelets? Do we monitor supply and demand of different blood types and pay accordingly? At some point, those with the most resources will get the organs they pay for. Is that what we really want - trading organs on eBay?

My own feeling is that we should have a priority system whereby registered donors and their immediate relatives are first in line to receive organs and blood in time of need. Regular blood and registered marrow donors at the top of the list, and people who don't want to donate (or abuse their bodies) go at the other end.


Stephen Olson

The "More Bone Marrow" group makes a compelling offer of college tuition, or a charitable donation, to lever their claim. That's good rhetoric.
But what happens when the donor has been typed as a suitable donor, and then says "well, actually, the price is fifty thousand. And if you don't like it, why don't you ask the recipient's family before you get all moralistic."
Your article makes the case that there's strong demand for harvestable tissue. And lord knows that we live in a country that worships at the altar of commerce, where every commodity with a seller and a buyer has a price...


I find this lawsuit disturbing and the whole concept offensive. I was an unrelated donor and it was a wonderful experience. I would like to believe my "gift" was worth a heckuva lot more than the nominal college scholarship or mortgage payment that this group would like to offer. Permitting a third party to place value on my donation is insulting. I was a donor because it was the right thing to do --- pure and simple.

Now if you were a recipient in need of a transplant, would you want the donated cells to come from someone who was motivated only by the money? How truthful do you think they would be about high risk behaviors? Our history clearly demonstrated the negative effect of paying donors --- that was routine practice in the blood industry during the 50's, 60's and 70's. Hepatitis infections were transmitted through the blood supply because donors were motivated by the money. It is a dangerous, slippery slope America. Be careful what you ask for because you might get it.


Ryan S. (Indiana)

something Al Gore isn't making money off of...

why can we give plasma for money, but not bone marrow?


All our lives are temporary ...

Here's one more situation where an economic analysis without regard to morality is insufficient. Without morality, we could all be organ farms for richer and more powerful people. Without economics, the newer and more convenient processes might not have been invented. We have to balance a moral outcome with an economic means. The moral outcome is that only willing donors would provide tissues; the economic outcome is that we would want to create enough willing donors to fill the transplant requirements.
A balanced solution might be to allocate a set pool of money based on actuarial expectations of transplant needs over a given time. Then provide everyone who makes a donation over that time with the same payment regardless of need or blood type. The point of this scheme would be to eliminate any opportunity for gaming or negotiating from the transaction while allocating the pool of money so that the prospective needs are met.



Where I live, blood donation is voluntary. (Well, you get a cup of tea/coffee and some biscuits (cookies).) I understand that in most (all?) of the USA, blood donation is for pay.

Does the money-for-blood system result in more blood? Does it result in riskier blood? (In a volunteer system, there isn't much incentive to lie on those questions which identify people at high risk of carrying blood-transmittable diseases.) If the volunteer system were tried in USA, would the largely private hospital system there prevent people volunteering? (Giving blood to a public health system is one thing, to a company is another.) Personally, I donate blood out of altruism, but I probably wouldn't for money.

Coming back to the topic: is money really the best way to increase the number of bone marrow donors? I rather like TomL's idea that if you donate, you're first in line to receive, but there are issues with this too. What if you don't donate because some medical condition makes you ineligible, and then need to receive. Is it fair that you go to the bottom of the list? If you sign up to donate, what are the odds that you'll never actually be called upon to donate? If the odds are low, people might sign up in bad faith, intending to refuse if they are called on: 'I've changed my mind.'

Donations to charity in 'payment' for marrow donations could also work well. Then the charities become recruiters for you.
"You can supply clean water to a 3rd world village of 500 people! Just sign up to donate bone marrow!"


and by

This is one of the most readable books I have found about blood typing and the blood industry.
Five quarts : a personal and natural history of blood / Bill Hayes
There really is no problem with having to find a perfect donor match a pretty good one would do since they can take the same antirejection drugs that they would for solid organs but the drugs are expensive and not likely to be covered for a marrow donation. So you could argue that it is the hugh price of the medications and not the lack of donations that are killing people and that seems to be pretty par for the course in America. You could also offer time off sentencing for nonviolent offenders, time counted as active duty for the military, or a tax credit. The real problem seems to be the for valuable consideration clause since we are really more worried about a black market or payment system where they want the money. So no money for service way less chance of a problem. Also does that mean that if the payment is of inconsiderable value it isn't against the law. So would it be legal to give a random amount donation to a random charity on the donors behalf since the would not be able to consider the value?


Hetty Greene

All medical procedures in this country need to have their costs standardized and monitored... Many people make too much money from the pain and suffering of others. That said (I just realized the Medigap plan I need costs 100 more per month in NYC than upstate -- go with that Freakanomics -- is that the landlord tax?) --

I have no problem with paying bone marrow donors, blood donors, (egg donors and sperm donors -- I have problems with because I think we needs lots of population control)., kidney donors-- can one be a liver donor??? or even paying something to the estates of people who are post-mortem organ donors.... Many people are making lots of money off of these charitable donation of others.. and contrary to popular notion, morally you are NOT supposed to make millions from the "helping" professions (although many, many do.....) nor is there anything wrong with giving donors some sort of monetary reward. (People enrolled in medical trials often get some sort of small reimbursement.)



tax credit...that's moving in the right direction. maybe on the philosophy that it takes you a certain effort, which can roughly be translated into dollars, and that this effort is charitable like a charitable donation in cash, something material, or time. thus your effort/expenditure should not be taxed. drop taxable income by $2000 and many of us would see about $500 less leave our pocket. the time delay, and lack of immediacy, would probably be a sufficient barrier to prevent vulnerable people from being exploited. i am sure donation centers already gather enough identity info that fraud can be well-managed. they would simply report some info to irs about any donor, as other institutions report tax info to irs. you claim it, the irs computer checks to see if they have received the info from the donor center, and you get your tax credit.