As many multiple myeloma and other blood cancer patients know, it is illegal to pay bone marrow donors. But last week, the Institute for Justice (IJ) filed a lawsuit to overturn this ban. If the IJ is successful, physicians, donors, and especially patients may be significantly affected.

The IJ reports that more than 1,000 Americans die each year waiting for a donor match. “Myeloma patients are among those who need a transplant,” said Jeff Rowes, the IJ’s lead attorney on the case. “The overturn [would make] a big impact on the number of donors.”

Bone marrow transplants are an important part of treatment in various types of blood cancers. The stem cells, after being separated from the donated bone marrow and inserted into the recipient’s bloodstream, begin to repopulate the patient’s bone marrow with new blood cells.

In the past, transplants required the removal of bone marrow directly from the pelvic bone. But since the induction of medications that prompt the donor’s stem cells to leave the bone and enter the bloodstream, the procedure has become much less invasive and painful. A machine filters these mobilized stem cells from the circulating blood, and the stem cells are then frozen until transplantation.

But the donor and recipient must still be perfect matches in a bone marrow transplant – even more so than in a kidney transplant. This is where the problem arises – matches are hard to come by and patients do not have the luxury of time to wait for a match.

“No one questions the science behind marrow donations,” said Dr. John Wagner in an IJ press release. Dr. Wagner is a bone marrow expert from the University of Minnesota. “The only question is why we don’t try compensation. We can demonstrate through a pilot program that compensation can be offered in a safe and ethical way.”

But the 1984 National Organ Transplant Act, which prohibits the sale of human organs, also makes it illegal to be compensated for donating bone marrow.

MoreMarrowDonors.org, a non-profit group, has recruited the IJ to file a lawsuit against the United States Attorney General to overturn this law. The law was originally enacted to prevent people from selling their kidneys and organs that are not renewable. But critics argue that the original law banning compensation for organs was not meant to pertain to bone marrow – unlike a kidney, bone marrow repopulates itself.

“Bone marrow got stuck in the statute – by mistake,” Rowes said. He described bone marrow donation as an unusual form of blood donation. “No reason to treat them like kidneys or livers,” he added.

MoreMarrowDonors.org is proposing a pilot program that will compensate the most needed donors, in particular minorities, with $3,000. The money would be in the form of a scholarship, housing grant, or donation to charity. Donors and patients would be matched anonymously through a national registry.

"Our goal at MoreMarrowDonors.org is merely providing the scholarships that encourage marrow donors to participate in the transplant procedure," said Shaka Mitchell, President of the organization.

"Our hypothesis is that many people drop off the registry or fail to follow through once contacted because they cannot afford time away from work or other commitments. By providing small scholarships, housing allowances, and gifts to charity we think we can prevent some of the attrition that eventually leads to patients unable to find marrow matches," added Mitchell.

Coverage of the lawsuit in the news media raises awareness of the shortage of bone marrow donors and may trigger an influx of donors to the registry.

However, in response to the media’s coverage, there has also been criticism of payment for bone marrow (for example, see the comments on The New York Times Opinion blog). For instance, paying for some bone marrow donations may raise donors’ expectations for financial compensation, thereby decreasing the number of altruistic donations. Additionally, payment may motivate people to conceal their health conditions in order for their donations to be accepted.

In the meantime, the lawsuit could take a couple of years to work its way through the judicial system. Rowes noted that an advocate in Congress would speed things along, but a long court process will at least call necessary attention to the subject.

“The goal is to make a serious dent in the shortage of bone marrow donors,” Rowes said. “Maybe save 1,000 lives a year.”

For more information, please see the IJ press release or Jeff Rowes’ blogging about the lawsuit on The Volokh Conspiracy.