Court allows pay for most bone marrow donors
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A federal appellate court has ruled that most bone marrow donors -- those donating through the apheresis process -- can be paid, a decision that "surprised and puzzled" an official for the National Marrow Donor Program.
The 9th U.S. Circuit Court of Appeals ruled unanimously on the matter Thursday, overturning the government's interpretation of a decades-old law making such payment a crime punishable by up to five years in prison. The donor program is a nonprofit that coordinates volunteer donors and recipients and opposes payments. Its chief strategy officer, Michael Boo, voiced his surprise after the court's decision.
The San Francisco-based court said the technological breakthrough that led to apheresis makes donating bone marrow a process nearly identical to giving blood plasma, which is legally and commonly sold. It noted that two-thirds of bone marrow transplants are done by apheresis.
John Lister, a hematologist/oncologist who is division director of Hematology and Cellular Therapy at West Penn Allegheny Health System, Friday called the ruling "a mistake."
"I think that the court does not understand the process of donation," he said.
Apheresis is the newer of two bone marrow donation processes and involves harvesting cells from the bloodstream rather than in bone. The donor undergoes a series of shots to stimulate the production of those cells beforehand. The court said the donation by apheresis is basically a blood donation, not an organ transplant.
The older procedure, aspiration, requires the donor to endure the insertion of long, thick needles into the cavities of the donor's hip bones to suck out the marrow. The court said that process was still covered by the National Organ Transplant Act, which explicitly prohibits paying donors for bone marrow.
"The product that is collected, whether it be obtained directly from the bone marrow or from the peripheral blood, contains blood-forming stem cells, and therefore there's no biological distinction between those two products," Dr. Lister said.
"The process of donation by apheresis is a safe procedure but not without risk and discomfort, much the same as donation of bone marrow. So I think that [the procedures] should be considered to be the same on the basis of identical biology."
The ruling came in a lawsuit brought by the nonprofit Institute for Justice, which represents a coalition of patients, doctors and MoreMarrowDonors.org. The latter group is seeking to offer donors $3,000 in the form of a scholarship, housing allowance or gift to charity.
But Dr. Lister said donation should be based on altruism. "That protects not only the recipient but also the donor, so no donor then would assume the risk of donation by being motivated by financial gain." He did say, however, that he thinks donors should be compensated for lost work time.
Proponents of paying donors said recompense would spur more donations, while those against compensation say it would exploit the poor, causing them to have risky medical procedures to benefit the wealthy.
Asked if he thought the ruling would spur more donations, Dr. Lister said, "I really don't ... because the number of people that find matches now is approaching 80 percent in races well-represented." What is needed, he added, are donors from select populations, such as African-Americans.
In Pittsburgh, he said, "most people are able to find donors." At West Penn Allegheny, donors can be recruited from around the world through the National Marrow Donor Program. Most donors in the registry go unused, he added.
The ruling won't become official for at least 30 days while the U.S. Department of Justice decides what to do next. It can ask the appeals court to reconsider its ruling or petition the U.S. Supreme Court to take up the case.
Mr. Boo said the donor program also is studying the decision and evaluating its impact. "We do not anticipate the ruling will change the NMDP's current policies and practices."
First Published December 3, 2011 12:00 am
