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Ninth Circuit Says Bone Marrow Compensation is Legal

By Robyn Hagan Cain | Last updated on

Broke college students and law students have long relied on selling plasma for extra cash. Last week, the Ninth Circuit ruled that people can also sell blood stem cells, a critical component of bone marrow.

A three-judge panel of the Ninth Circuit Court of Appeals has ruled that a donor can accept compensation for marrow cells because the cells are blood parts rather than organ parts, reports the Los Angeles Times.

The Ninth Circuit describes bone marrow as the body's blood factory. Bone marrow contains hematopoietic stem cells, the "seeds from which white blood cells, red blood cells, and platelets grow." Bone marrow transplants can help sick patients to produce new blood cells.

Until 20 years ago, bone marrow was only extracted through the painful "aspiration" process. Aspirations involves sticking a thick needle into a donor's hip bone cavity, and necessitates hospitalization and anesthesia. Based on this risky process, the National Organ Transplant Act prohibited the sale of bone marrow. Now, blood stem cells can be extracted through a process called "apheresis," which poses fewer risks to donors and does not require sedatives or anesthesia.

Plaintiffs in this case included cancer patients and family members, bone marrow transplant experts, and, a California nonprofit that wants to operate a program incentivizing bone marrow donations with scholarships, housing allowances, and charitable donations.

The plaintiffs sued, arguing that the National Organ Transplant Act, as applied to's bone marrow compensation pilot program, violated the Equal Protection Clause. They claimed that blood stem cell harvesting is not materially different from blood, sperm, and egg harvesting, which are not included under the statutory or regulatory definitions of "human organ."

The Ninth Circuit Court of Appeals agreed with the plaintiffs, and ruled that the "peripheral blood stem cell apheresis method of bone marrow transplantation" is not a transfer of a "human organ" or a "subpart thereof" under the National Organ Transplant Act, so the statute does not criminalize compensating the donor.

One important point worth noting: The court specifically stated that the Secretary of Health and Human Services (HHS) had not exercised regulatory authority to define blood or peripheral blood stem cells as organs, so prohibiting compensations for peripheral blood stem cell donations would be unconstitutional. Even if the Justice Department does not challenge this Ninth Circuit ruling, HHS could define peripheral blood stems, and effectively reverse the Ninth Circuit's decision through bone marrow compensation regulation.

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