Court: Some bone marrow donors can be paid

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FILE - In this Feb. 15. 2011 file photo, Kumud Majumder holds a photo of his deceased son, 11-year-old Arya Majumder, outside U.S. Federal Court in Pasadena, Calif. A federal appeals court on Thursday, Dec. 1, 2011 ruled that most bone marrow donors can be paid, overturning the government's interpretation of a decades-old law making such compensation a crime punishable by up to five years in prison. Majumder, a plaintiff in the case against the government, said his son died of leukemia last April. The family had resorted to an imperfect bone marrow donor match in desperation because no perfect match was available. (AP Photo/Nick Ut, File) FILE - In this Feb. 15. 2011 file photo, Kumud Majumder holds a photo of his deceased son, 11-year-old Arya Majumder, outside U.S. Federal Court in Pasadena, Calif. A federal appeals court on Thursday, Dec. 1, 2011 ruled that most bone marrow donors can be paid, overturning the government's interpretation of a decades-old law making such compensation a crime punishable by up to five years in prison. Majumder, a plaintiff in the case against the government, said his son died of leukemia last April. The family had resorted to an imperfect bone marrow donor match in desperation because no perfect match was available. (AP Photo/Nick Ut, File)eval("var currentItemd57851005a80479aaeeb90a12c70b9ff = 1;");eval("var nextd57851005a80479aaeeb90a12c70b9ff = 0;");eval("var previousd57851005a80479aaeeb90a12c70b9ff = 0;"); SAN FRANCISCO (AP) — A father who believes a lack of bone marrow donors contributed to his son's death from leukemia says a federal court ruling allowing most bone marrow donors to be paid will save lives and drive down treatment costs.

The appeals court ruled Thursday that most bone marrow donors can be paid, overturning the government's interpretation of a decades-old law making such compensation a crime punishable by up to five years in prison.

In its ruling, the 9th U.S. Circuit Court of Appeals said a technological breakthrough makes donating bone marrow a process nearly identical to giving blood plasma.

It's legal — and common — to pay plasma donors. Therefore, the court ruled, bone marrow donors undergoing the new procedure can be paid as well and are exempt from a law making it a felony to sell human organs for transplants.

The ruling comes after a lawsuit was filed by lawyers at the nonprofit Institute for Justice. The group represents a coalition of patients, doctors and MoreMarrowDonors.org, which is seeking to offer donors $3,000 in the form of a scholarship, housing allowance or gift to charity.

A plaintiff in the lawsuit, Kumud Majumder, said his 11-year-old son, Arya, died of leukemia last April.

The family had resorted to an imperfect bone marrow donor match in desperation because no perfect match was available, the father said at a news conference outside the circuit court's Pasadena chambers

"Arya's tragedy happened in part because of a lack of bone marrow donors," Majumder said. "In the end, creating more and better bone marrow donor matches through a system of modest compensation will save the lives of patients, improve the lives of donors, drive down the costs of treatment and improve the quality of life of cancer patients as they battle to survive."

The unanimous, three-judge panel of the court did say it remains a felony to compensate donors for undergoing an older transplant method, which extracts the marrow from the donors' bones.

But the court said the new technology isn't covered by the law because actual bone marrow isn't taken from the donor. Instead, specialized cells that grow into marrow are taken from a donor's bloodstream, and it's basically a blood donation, not an organ transplant, the court said. It noted that two-thirds of bone marrow transplants employ the newer process.

Tens of thousands of people with leukemia, lymphoma and other blood diseases are saved each year by such procedures. An estimated three thousand others die waiting for donations, which unlike simple blood donations need to be genetically compatible, making matches especially difficult for African Americans.

The decision won't become official for at least 30 days while the U.S. Department of Justice ponders what to do next. The DOJ can ask the appeals court to reconsider the decision or petition the U.S. Supreme Court to take it.

DOJ spokesman Charles Miller said the department is reviewing its options.

Advocates for paying donors said compensation will spur even more donations. Detractors argue that donor compensation will exploit the poor to undergo risky medical procedures to benefit the wealthy.

The National Marrow Donor Program, the nonprofit that provides transplants from volunteers, opposes payments.

"We were surprised and puzzled by the appellate court's decision regarding allowing compensation," said Michael Boo, the program's chief strategy officer. "The National Marrow Donor Program is studying the decision and assessing the impact. We do not anticipate the ruling will change the NMDP's current policies and practices."

The ruling overturns a lower court decision barring compensation for all bone marrow donations.

At the heart of the court's ruling, which is sure to ignite renewed debate over paying medical donors, are two processes for transplanting bone marrow into patients suffering from diseases of the blood.

The first and older one is known as "aspiration" and requires the donor to endure painful and risky procedures that require hospitalization and anesthesia. Long, thick needles are inserted into the cavities of the donor's hip bones to suck out the bone marrow. The court said that process was still covered by the National Organ Transplant Act, which explicitly prohibits paying donors for their bone marrow.

"The point of the ban on selling organs is to protect people from ignoring the medical risk for money," said Arthur Caplan, a bioethicist with the University of Pennsylvania. Caplan said the ruling Thursday may unintentionally support campaigns to pay donors in other medical fields such as compensating women for their eggs.

The newer procedure, which the court ruled exempt from the act, was developed about 20 years ago and involves harvesting cells from the bloodstream rather than in bone. Called "apheresis," the procedure requires the donor to undergo five days of drug injections to stimulate production of specialized blood cells. Then the donor sits in a recliner for several hours while the blood is filtered through a machine that extracts the specialized cells.

"Congress could not have had an intent to address the apheresis method when it passed the statute, because the method did not exist at that time," Judge Andrew Kleinfeld wrote for the court. "We construe 'bone marrow' to mean the soft, fatty substance in bone cavities, as opposed to blood, which means the red liquid that flows through the blood vessels."

Kleinfeld said it may be time to apply a new label to the process.

"It may be that 'bone marrow transplant' is an anachronism that will soon fade away, as peripheral blood stem cell apheresis replaces aspiration as the transplant technique, much as 'dial the phone' is fading away now that telephones do not have dials," Kleinfeld wrote.

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Meet the brain donors

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10 October 2011 Last updated at 06:49 GMT

Twelve elderly people - all of whom have chosen to give their brains to neuroscience upon their deaths - have agreed to waive their right to donor anonymity for a new exhibition, supported by the Wellcome Trust, that combines art and science.

The participants - five of whom have already died - want to increase understanding about dementia, and had already agreed to allow their brains to be studied for physical signs of the disease, even though they might not, while alive, have outward symptoms.

Mind Over Matter, which opens in London this week, looks at the donors' past lives and tries to demystify what happens in brain bank laboratories. It was put together by artist Ania Dabrowska and Dr Bronwyn Parry from Queen Mary, University of London.

Continue reading the main story To see the enhanced content on this page, you need to have JavaScript enabled and Adobe Flash installed. Mind Over Matter - supported by the Wellcome Trust - can be seen at Shoreditch Town Hall in London between 12-23 October 2011.

Eric Stannard, Beryl Foreman, Frank Walbank, Irene Overton and Ella Wiltshire have died.

All images copyright Ania Dabrowska. Music courtesy KPM Music.

Slideshow production by Paul Kerley. Publication date 10 October 2011.

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Should organ donors get free funerals?

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11 October 2011 Last updated at 15:45 GMT Many believe that organ donation should simply be about altruism Paying the funeral expenses of organ donors is a good idea - but safeguards are needed, argues ethicist Simon Rippon.

The Nuffield Council on Bioethics recommends that the NHS offers funeral expense payments to people who sign the organ donor register, on the condition that they later die in circumstances in which their organs can be donated to others.

This idea is to be warmly welcomed. By providing an additional incentive to people already inclined to sign the organ donor register, it could enable the NHS to provide faster and better treatment, and to save many more of the 1,000 people who die every year in Britain while waiting for an organ. It would also provide symbolic recognition of the priceless gift that organ donors give.

Is there anything ethically questionable about this life-saving proposal?

Well, many people think that organ donation should be a purely altruistic matter, and the Nuffield Council attempts to draw a fine line - recommending policies that may provide extra encouragement to those already inclined to donate for altruistic reasons, while strongly scrutinising proposals for introducing more significant incentives which might persuade people to donate who would not otherwise consider it.

Altruism is undoubtedly a good thing, and its role in motivating organ donations should not be underestimated. But enabling altruism should never trump saving lives.

What we should be concerned about when it comes to incentives for organ donation is not the purity of donors' motives, but the way that payments could facilitate coercion or exploitation of those in poverty.

Organ donation should be a fully free choice for each of us, and never an economically necessary one.

For this reason, it is important that organ donation never becomes the only way to pay for one's funeral. The government currently provides funeral payments from the Social Fund to those in poverty. It must continue to do so as a safeguard against coercion and exploitation, if funeral expenses for donors are introduced.

The Nuffield Council's report also considers moving to an "opt-out" system for deceased organ donation, under which it would be assumed that people consent to donation unless they either opt out before they die, or their family later objects.

The council rightly does not oppose such a system on ethical grounds, because it would leave the choice of donation or non-donation entirely in the hands of individuals and their families, as it is now.

Some people object to an opt-out system on the basis that there will inevitably be a few people who fail to opt out and fail to inform their family of their wishes, even though they would not wish their organs to be used to help others - and these people may have their organs taken without consent.

But there's a straightforward reply, arising from the observation that the vast majority of the public support organ donation, though few get around to signing the donor register.

Under the current, opt-in system, there are many more people who fail to sign the donor register and fail to inform their family of their wishes, even though they would wish to help others with the gift of their organs, and these people's organs may go pointlessly to waste without their consent.

If we wish to fulfil the wishes of the most deceased people, then, the default for those who do not express their wishes should be for them to be available to donate.

Nevertheless, the Nuffield Council raises concerns about the practical effects of a change to opt-out - worrying that it might not substantially increase donation rates, and might even reduce the number of donors by prompting vocal opposition.

My view is that the British public is a bit more sensible than the council gives credit for here, and that an opt-out system would produce substantially more donor organs from among those who mean to sign the donor register "when they get around to it".

Nevertheless, the Welsh Assembly looks set to change the system in Wales to opt-out, and the report notes that this provides a rich opportunity for robust research into the likely effects it would have across Britain. If it's not yet ready to act on opt-out, the government should make this research an urgent priority.

Simon Rippon is a Research Fellow at the University of Oxford's Uehiro Centre for Practical Ethics. He writes regularly on ethical issues at the centre's blog: Practical Ethics

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