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Pay bone marrow donors, landmark court ruling says
In a groundbreaking decision, the Ninth U.S. Circuit Court of Appeals ruled that a technological breakthrough makes donating bone marrow a process nearly identical to giving blood plasma. This decision by the courts now makes it legal to compensate marrow donors, just as plasma donors are compensated.
The court differentiated between the classic technique of recovering bone marrow by aspirating it through a long needle from the hip and recovering stem cells by pheresis, which it likened to obtaining blood by donation. It stated that peripheral blood stem cells are a subpart of blood, and not of bone marrow, and hence not covered by National Organ Transplant Act (NOTA), as blood was specifically excluded as an organ by NOTA. "Donating stem cells by pheresis is nearly identical to donating platelets or plasma by pheresis, though most plasma is obtained by separating it from donations of whole blood, which is a much simpler, shorter, less uncomfortable, or time-consuming process," says Michael E. Shapiro, MD, FACS, chief of organ transplantation, vice chair of the Department of Surgery, Hackensack (NJ) University Medical Center, and associate professor of surgery, New Jersey Medical School, Stratford.
Before this overturning, the compensation of bone marrow was a crime punishable to up to five years in prison. The unanimous, three-judge panel of the court indicated that it remains a felony to compensate donors for undergoing an older transplant method, which extracts the actual marrow from the donors' bones.
"NOTA says it's a felony to receive 'valuable consideration' in return for human organs. This is clearly an important, viable law that should not be changed," says Shapiro. As noted in the appellate decision, it is important to obtain reliable information about a donor's medical and social history to ensure that the organs obtained are safe to transplant, and payment to individuals, potentially desperate for those funds, might induce a potential vendor (aren't considered a donor if they are selling rather than donating) to omit certain relevant information, or to lie. "There are many other moral, ethical arguments to be made in favor of banning the commodification of human organs, but the medical argument goes to the need for reliable information, the avoidance of coercion, and informed consent," Shapiro says.
The court has distinguished between bone marrow recovery by aspiration, which Congress prohibits under NOTA, and stem cell recovery by apheresis, which it believes is "blood donation" not "organ donation" and not covered by NOTA. "Many states have banned payments for blood donation for the same reasons ” safety of the blood supply ” that have been stated for the organ sale ban." Shapiro says. "I personally am not in favor of payment for blood products, so, being consistent, I would oppose payment for stem cell apheresis as well."
The court said the new technology isn't covered by the law because actual bone marrow isn't taken from the donor. According to the court, 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 also pointed out that two-thirds of bone marrow transplants employ the newer process.
While the legal ruling enables payment, it doesn't require an ethical perspective. Presumably a hospital could decide whether to use paid donors in its transplant programs, and this decision would be an appropriate issue for hospital ethics committees to create a new policy.
Ann Mongoven, PhD, MPH, assistant professor, Center for Ethics and the Humanities in the Life Sciences, Michigan State University, East Lansing, says, "practically speaking, as the law becomes more settled, it will become harder for an ethics committee/individual hospital to require donor specifications not required by law. Crassly put, their hospitals will end up losing transplant market share if they do."
Advocates for paying donors believe that compensation will be an incentive for more donations. Shapiro says, "There certainly are people who will do certain things for money that they would not do under other circumstances." Some surveys have suggested an increase in people willing to sell their organs; other surveys have shown that at least some current altruistic donors would be negatively impacted by organ sales and might not donate. "We don't know how the balance would turn out," Shapiro adds. (For an opinion of a post- transplant patient, see related story,below).
Another issue is whether risk is being considered adequately, and what risks are appropriate to incentivize through payment. Mongoven says, "The court is saying the new procedure is so low-risk, it is OK to pay. But the procedure involves significant drug-priming and time. Is it really so minimal risk? And if really so low risk, why not expect that we could get many to volunteer without payment?"
Patient speaks out after transplant
We have an organ-donor crisis, need policy!
Post-transplant patient David Courtney says that America's present system of organ donation, which relies primarily on altruism, is failing miserably in meeting the demand for organs because the waiting list keeps increasing rapidly, now nearing 113,000, according to the United Network for Organ Sharing, the federally contracted operator of the U.S. Organ Procurement and Transplantation Network.
Media reports say that on average, one person who has been listed for transplant dies every 52 minutes. Courtney recommends a new organ-donor policy called 'presumed consent' that would mandate that all citizens are organ donors; however, each citizen retains the right of free choice and can opt out of the system at any time.
Courtney is the president of the Presumed Consent Foundation and a member of the FAIR Foundation's Board of Directors, whose 27 transplant surgeons, medical directors, and patient advocates support of the implementation of presumed consent policy. Courtney has intimate knowledge regarding the long wait for transplant. His life was close to ending after many years waiting for a double lung transplant.
"Although my life has been saved," Courtney states, I continue to fight for change from our present policies because so many others are needlessly dying; indeed, thousands of those lives can be saved."
"Making a choice," Courtney says, "remains the most important part of this policy as everyone is entitled to have their choice honored. This policy is presently in effect in 27 countries. It is the fastest and least expensive way to lessen the shortage of organs for transplantation."
Courtney states, "Studies by the Association of Organ Procurement Organizations and its members have shown that when faced with a decision at the time of a tragic event, many people do not consent to donation of their loved one's organs or tissue, simply because they don't know their loved one's choice. As a result, our current 'opt-in' system based on altruism is not meeting the demand for organs. Even with our state and federal governments having spent billions of dollars on educating our public on the need for donation, we still have the crisis of a death every 52 minutes."
Courtney has clarified in presentations throughout the United States to patient and civic groups, the United Network for Organ Sharing's Ethics Committee and the U.S. Department of Health and Human Service's Advisory Committee on Organ Transplantation, as well as many state and federal legislators and committees that the presumed consent policy in the United States should be implemented with integral capabilities as championed by the Spanish Model of Presumed Consent: notification, education, awareness, a central registry, program management, and legal protection for providers and oversight.
Courtney summarizes his position, "Yes, my life was saved by our present policy, but thousands of others are dying, and we must fight to help them with the implementation of presumed consent policy, which will provide many more organs for life-saving transplant."