Sherry F. Colb

Suit Challenges Federal Ban on Compensation for Bone Marrow Donors

Monday, November 9, 2009

Recently, the Institute for Justice (IJ) filed a lawsuit against Attorney General Eric Holder Jr., asking that he be enjoined from enforcing the federal criminal prohibition on compensating bone marrow donors, a prohibition contained in the National Organ Transplant Act (NOTA) of 1984. Other plaintiffs in the suit include patients suffering from blood diseases such as leukemia.

The IJ and its co-plaintiffs argue, among other things, that preventing sick people in need of bone marrow transplants from offering compensation to donors who could make those transplants possible, violates the Due Process Clause of the Fourteenth Amendment. This column will evaluate that claim and consider, more generally, the merits of a policy that criminalizes the sale of bone marrow.

Why Prohibit Compensation for Bone Marrow Donors? The First Fear: Deception

Supporters of the "no market in transplantation" laws invoke three classes of negative consequences in defense of those laws. The first concerns the impact that a bone marrow "market" could have on the quality of donated material. The second has to do with the coercion that such markets can inflict on the poor. And the third revolves around the broader societal impact that this sort of market (in place of a donation system dependent upon pure altruism) could have.

The first objection posits that offering a potential donor compensation for donating biological material will give him an incentive to conceal facts that would reduce or eliminate the demand for his particular biological material. That is, if the people who come forward to donate are motivated by the desire for compensation, then they might be inclined to pad their medical CVs to ensure that the purchases take place.

Consider the following example: Mr. Smith needs a bone marrow transplant because he suffers from leukemia. He offers $2000 to any compatible donor. Ms. Jones needs cash and therefore finds Mr. Smith's offer of $2000 very attractive. Before agreeing to the transaction, Mr. Smith asks Ms. Jones if she engages in any "high-risk" sexual activities that would substantially increase the odds that she has been exposed to the virus that causes AIDS. Although she has in fact engaged in such activities, she knows that revealing this fact would probably deter Mr. Smith from accepting her offer to donate. Ms. Jones thus lies and says that she has never engaged in any activities that would increase her odds of HIV exposure.

Deception is, of course, always a possibility; people may lie out of embarrassment, for example. However, if we eliminate the financial motive for donating, we might reduce the donor's incentive to fabricate. In our above example, assume now that Mr. Smith does not offer any cash but simply advertises his need for bone marrow. Assume that a different potential donor, Ms. Doe, comes forward and offers to donate. She too must confront the question about high-risk sexual activities. But because she has little to gain from having her bone marrow accepted (other than the warm glow of helping a person in need), she is, we assume, less inclined to lie in response to the question. If she is there to help Mr. Smith (rather than to get cash), then she will presumably want to be honest and thereby enable Mr. Smith to make the best decision possible for his own wellbeing. Unlike Ms. Jones, she does not face the temptation to engage in antisocial behavior in order to earn $2000.

The Second Fear: Coercion

Opponents of donor markets also worry about the possibility of coercion in the conduct of such markets. One sort of coercion is purely economic and straightforward: The bone marrow donor really does not want to donate her marrow and would be much better off not doing so (because of medical risks particular to her, for example). However, she is so poor that the $2000 offer is too attractive for her to ignore. She is so desperate for money, in other words, that she cannot truly appreciate the downside of donating and is vulnerable to financial invitations to jeopardize her health.

Another sort of coercion is physical. If there is money to be made in the selling of bone marrow, this argument goes, then third parties might enter the market and be motivated to threaten or otherwise force the potential donor to donate marrow, while then taking a cut – or all – of the compensation the donor would receive. Third parties might even have an incentive to kidnap people and utilize them as marrow "donors."

The Third Fear: Commodification

The third sort of consequence that troubles opponents of markets in biological material is the "commodification" concern. From this perspective, some things simply should not be given a price tag, because pricing them will irreparably harm the way people think about themselves, their lives, and the relationships that they have with one another. According to this view, commodifying the non-commodifiable results in a degradation that is destructive in and of itself and that will have spill-over effects on society generally.

To make this idea more concrete, consider the example of prostitution. Many people oppose prostitution for one or both of the first two sets of reasons articulated above – the incentive to hide potentially life-threatening conditions and thereby spread sexually transmitted disease; and the potential and reality of coercion, both economic and direct, in the sex trade. Others, however, oppose prostitution more fundamentally, independently of these risks, because it places a price tag on sexual relationships. These opponents of prostitution strongly believe that sexual relationships are best experienced as a function of reciprocal love and/or mutual desire, rather than as part of a market transaction.

For anti-commodification opponents of prostitution, even if a woman (or man) wants to be a prostitute and finds the prospect of the job appealing, our laws still should not permit her (or him) to exchange sex for money, because the fact of the transaction itself alters everyone's understanding and experience of sex.

People have articulated similar arguments against compensated surrogate motherhood, in which a woman receives money for carrying a pregnancy for a person or couple who wants to parent the resulting child. Opponents here contend that pregnancy, birth, and babies should not be commodified.

Assessing the Arguments in the Bone Marrow Context

Does one or more of the three above arguments – based, respectively, on deception, coercion, and commodification – persuasively apply to bone marrow? To answer that question, it is useful to think about what is and is not lost in bone marrow donation.

Like blood, bone marrow is a renewable resource. People who donate it do not live the rest of their lives with less bone marrow but are in fact "whole" again within a matter of weeks. This fact distinguishes bone marrow donation from conventional organ donation: A person who gives up a kidney will now live with only one kidney.

The relevance of this distinction lies in responding to the second argument – that money could motivate people to do things that are otherwise dangerous and terrible for them, because they are so desperate for cash. Though bone marrow donation is somewhat unpleasant, it is not very risky and therefore, not the sort of thing that is so self-destructive as to raise questions about the donor's competency to weigh costs and benefits when facing the possibility of monetary compensation.

For similar reasons – because donating marrow is not presumptively self-destructive for the donor – it would seem far-fetched to imagine that a legal market in bone marrow would motivate people to kidnap or otherwise coerce others to donate. Indeed, it may well be the current shortage in willing donors (resulting, quite possibly, from the inability to compensate them) that would draw unsavory characters to kidnap or otherwise coerce unwilling people to donate bone marrow (though I have no reason to think that, in fact, there is such a reprehensible underground in operation). When the donation of an organ is at issue, this factor could lead to a different conclusion. There, we have greater reason to fear coercive organ harvesting schemes and worry about the poor and vulnerable potential donors who might feel prepared to do almost anything, no matter how dangerous, for much-needed money.

Whether people might be eager enough for the money to lie about their health history in connection with bone marrow donation is another matter. One way to deal with this problem, however, would be to conduct rigorous medical screening of donors (much of which would not rely on self-reported information). In the context of blood donation – which is currently uncompensated, although federal law does not criminalize its compensation – all blood is HIV-tested before it enters the available pool. This is true even when the donor claims never to have used intravenous drugs and never to have engaged in any sexual activity at all. This policy reflects the reality that, even without financial incentives, people can and will lie about their health histories, perhaps because they want to think of themselves as healthy (and would rather not acknowledge that their behavior is risky enough to disqualify them from donating).

In light of these points, and in the face of a bone marrow shortage, it seems very odd to suggest that we are somehow protecting potential recipients – many of whom will simply receive no marrow and will die as a result – by prohibiting them from offering money to potential donors.

What about the third concern -- commodification? One could make the argument that any bodily fluid or tissue is personal enough to raise the issue of cheapening our relationships with one another by putting a price tag on it. Perhaps one might contend, on this theory, that all biological material should be donated only on the basis of altruism and concern for one's fellow human beings. Yet currently, such altruism and concern have proven to be in too short supply, and many are paying the cost with their lives.

Moreover, we do currently permit a person to sell his sperm, or her eggs, both of which would seem far more profoundly connected with a donor's identity (as a potential parent) than is bone marrow. As the plaintiffs in IJ's suit point out, as well, ova are not a renewable resource, while bone marrow is. Given that federal law permits the sale of gametes, prohibiting compensation for bone marrow seems arbitrary and irrational.

Another feature of the commodification argument is the worry that people will no longer experience gratis donation as an inviting prospect. If bone marrow donation were compensated, on this theory, then people who would otherwise have been willing to donate their bone marrow for free (just to save a person's life) will now consider the marrow to be a commodity to be sold (or not sold, if the price is too low). What was previously an act of charity, love, and altruism might thus evolve into an act that is undertaken only for adequate financial gain. And this change might in turn usher in a less altruistic and more selfish society, where people are no longer of a mind to do things just because they are the right things to do.

This worry connects well with psychological research suggesting that compensation for engaging in tasks undermines intrinsic motivation to perform those tasks. Studies show that a child who has been given candy in exchange for drawing pictures is less interested in drawing pictures when no candy is offered than is a child who was not offered candy for her drawing in the first place. Such studies lead some parents to worry that rewarding appropriate behavior (whether pro-social or simply studious) will make a child less interested in behaving appropriately when a reward is not forthcoming.

Yet even if we accept the facially-plausible claim that paying people for bone marrow will reduce the spontaneous incentive to donate, we must consider how inclined people currently are to donate their bone marrow for free. Though there are donors, the population of potential donors (who could likely end the marrow shortage in short order) dwarfs the population of actual, willing donors, especially for people who have an unusual genetic makeup (and thus fewer matches in the general population), including multi-racial individuals. Is it truly worthwhile to better preserve the altruism of the small number of willing donors, at the cost of failing to provide donations to the many potential recipients who cannot currently obtain one? The plaintiffs in the IJ's suit claim that about a thousand people every year pay with their lives for this preference for altruism.

A Legal Basis for the IJ and the Other Plaintiffs' Suit: Due Process

The plaintiffs argue that not only is the refusal to permit compensation wrong, as a matter of policy, but it also violates the Constitution. They claim that people have a right to pursue needed medical treatment, and that an important way of doing this is by offering money for a commodity – bone marrow – that is in short supply and that not enough people are offering for free. Because it is irrational to interfere with such provision of medical care, argue the plaintiffs, the prohibition on bone marrow compensation violates substantive Due Process. Laws must bear a rational relation to a legitimate governmental interest to satisfy Due Process requirements.

For the reasons discussed, it does appear irrational, in the ordinary sense of the term, to prohibit compensated bone marrow donation. The Supreme Court, however, has generally upheld under "rational basis" scrutiny any law that rested – however imprecisely – on a plausible overall foundation. Applying this extremely deferential standard, a court could say that bone marrow donation is enough like organ donation to raise the various problems identified here – deception, coercion, and commodification – in at least some cases. Though an imperfect rule, in other words, it is not utterly incomprehensible and therefore satisfies the minimal requirements of Due Process.

A court could, however, take a different approach. Though the plaintiffs ask for rational basis scrutiny, a court could find that individuals have a fundamental right to access life-saving treatment. Infringements upon fundamental rights call for "strict scrutiny," under which the law must be necessary and narrowly tailored to promoting a compelling governmental interest. On this approach, a prohibition against paying for bone marrow substantially impedes the individual's right to treatment by deterring needed third parties from facilitating the exercise of that right. And prohibiting compensation for bone marrow donation is a very imprecise means of furthering the government's interests (given the sorts of compensated donations that remain permissible), so it fails strict scrutiny. Like a prohibition against the purchase and sale of contraception or the purchase and sale of newspapers, the prohibition at issue here would violate the Constitution as well.

Though I have argued that the challenged law is unfair and unjustified, it will nonetheless be difficult for plaintiffs to win. The Supreme Court generally applies a deferential rational basis review to laws that regulate medical practice, even though such laws can have a profound impact on health and life. A government agency may, for example, refuse to approve a drug as safe and thereby effectively destroy the lives of patients who would have benefited from it. Because Congress is not attempting to interfere with patient health but to further it, the courts may well see fit to leave the current prohibition in place. If that happens, as I suspect it will, then Congress should consider repealing this ill-considered section of the law against organ donations.

To be sure, donors of biological material are sacrificing in a very personal way when they provide treatment to a patient in need. It is accordingly legitimate to want to protect such donors from the coercive pressures of economic hardship. But marrow donation is relatively low-risk – certainly no more risky than egg donation – and therefore does not justify the worries that drive the law in the case of organs, in which the donor's sacrifice is far more substantial.

If our goal, by contrast, is to protect the recipients of donated bone marrow, then the fact of the marrow shortage has great weight. Not being able to access treatment at all is surely far worse than accessing treatment in which the risk of deception by a donor is somewhat elevated. Medical screening should be thorough, in any event, because we can never rule out deception or simple error in self-report measures.

If we are trying, finally, to protect society from the consequences of commodifying everything, then bone marrow is a poor choice for regulation. It is difficult to imagine that our society will become less caring and more selfish as a result of compensated bone marrow donation. And how selfless is it for us to embrace a policy that allows many people to die who would otherwise live? Such a policy furthers the illusion that some things are beyond commodification, even as we commodify such things as sperm and eggs, and it therefore illegitimately and arbitrarily impedes patient access to life-saving medical treatment. At a time when our nation is trying to do a better job rationalizing our approaches to health care, it would be wise to leave behind such an arbitrary and harmful criminal law.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.