Is It Time to Reconsider the National Organ Transplant Act?
Earlier this month, Attorney General Eric Holder declined to petition the U.S. Supreme Court to review Flynn v. Holder, a controversial decision out of the U.S. Court of Appeals for the Ninth Circuit from December of last year. Flynn addresses the National Organ Transplant Act of 1984, or NOTA, which has long been a contentious issue in bioethics circles, chiefly because it prohibits compensation for the donation of various parts of the human body, ranging from bone marrow to livers and kidneys.
In Flynn the court issued a limited yet salient decision against NOTA. Flynn held that NOTA’s ban on selling bone marrow does not include “peripheral blood stem cells” obtained through a method called “peripheral blood stem cell apheresis” (apheresis, for short). Apheresis is the current method for donating bone marrow.
When NOTA was enacted in 1984, bone marrow donation involved anesthesia and the insertion of long needles into the donor’s hip bones to extract the marrow. Apheresis, in contrast, is much less invasive and carries only a very minimal risk of complications. It involves five days of injections of a drug that accelerates blood stem cell production in the marrow, after which the marrow can be extracted from the donor’s blood. As Mary Vitale, a legal scholar writing on bone marrow transplant law, states, “Arguably, the biggest sacrifice marrow donors must make . . . is their time and the minimal discomfort they may experience during injections and extraction.”
Of the arguments pursued in Flynn, the plaintiffs’ argument that focused on apheresis brought success. The court agreed that because apheresis was developed after 1984, Congress could not have had the intent to address it in NOTA. This accords with one of the purposes for enacting NOTA in the first place, namely, to prevent the commercialized, permanent disfigurement of the human body. Such a purpose is clear in the instance of, say, kidney donation, which is an invasive, inherently risky, and permanent procedure. Apheresis, on the other hand, is not unlike giving blood and the extracted blood stem cells are replaced by the donor’s bone marrow in a matter of weeks. In light of the similarity between apheresis and giving blood, the court noted that NOTA does not prohibit the sale of blood. If the sale of blood is allowed under the statute, the court reasoned, why should compensation for bone marrow donation via apheresis be prohibited?
However, for those who support a market-based system for bone-marrow donation—or organ and tissue donation on the whole—Flynn is but a minor victory. Because Attorney General Holder did not petition the Supreme Court to review Flynn, the applicability of its holding will remain limited to those nine states comprising the Ninth Circuit.
Moreover, two other arguments were presented in Flynn, the first of which was only considered by the district court, and the second by both the district court and the Ninth Circuit. If either argument had been successful, Flynn would have had much wider implications. The first argument espoused a libertarian view of substantive due process protections, claiming that the government should not be permitted to interfere where an individual is in need of an organ to live and someone is willing to sell it to him or her. The second argument, based on the Equal Protection Clause, asserted that there is no rational basis for allowing compensation for donating blood, sperm, and eggs, while prohibiting compensation for donating bone marrow. However, since Flynn was ultimately decided by a narrow statutory interpretation, as I. Glenn Cohen reminds us, “Congress can always change the law by adding the words ‘peripheral-blood stem cells.’”
Even though Flynn is not a major victory for proponents of a market-based system, it does highlight a fundamental practical issue for organ transplantation in the United States: the demand greatly outweighs the supply. The Department of Health and Human Services cites that an average of 18 people die in United States each day waiting for an organ transplant that will not occur due to donor shortages. NOTA shirks this practical issue by appealing to two broad, classic arguments.
First, we worry that a market-based system will create injustices, where people buy and sell things under conditions of inequality or economic duress. Michael Sandel calls this the “fairness objection.” This concern is not unfounded. News headlines frequently recount instances in which people living in impoverished conditions abroad have sold an organ out of financial need at great risk to their health. By relying on an altruism-based system, which determines access with waiting lists, we obviate the concerns underlying the fairness objection.
Second, we worry that buying and selling parts of the human body devalues and corrupts their inherent worth, turning them into mere commodities. Sandel calls this the “corruption objection,” but it is often put in terms of commodification. Memorably, during congressional hearings on NOTA, Rep. Henry Waxman (D-CA) appealed to this worry, stating that “[h]uman organs should not be treated like fenders in an auto junkyard.”
Critical though these two issues are, NOTA offers no middle ground. Flynn, however, offers just that. While most would have at least some reservations about allowing a market for kidneys and livers, for instance, Flynn rightly shows one instance in which NOTA should be amended, given germane medical changes to the bone-marrow donation process. By providing a middle ground, Flynn also motivates the need to find other amenable ways to remedy the practical issue of a growing organ and tissue shortage.
If, as in Flynn, the thought of fully scrapping NOTA gives us pause, we need to discuss alternatives that would help solve the issue of shortage without treading carelessly over our ethical sentiments. Some have suggested transitioning to a national opt-out organ donor policy, which has been successful in other countries. Others suggest that better health literacy would help our current opt-in system, which has been hindered by unfounded worries of aggressive physicians harvesting organs from victims of catastrophic accidents. Still others suggest instituting incentives to entice organ and tissue donation. For instance, in Israel, family members of donors are given priority on the waiting list of organs should they ever require a transplant.
By highlighting the middle ground between altruism- and market-based models, Flynn can be seen as a positive, critical step toward fostering dialogue on the many issues surrounding NOTA.
Nicholas J. Diamond, a lawyer by training, is currently a graduate student in bioethics at the University of Pennsylvania.
 665 F.3d 1048 (9th Cir. 2011).
 42 U.S.C. § 274e (2006).
 Mary G. Vitale, Note, “National Organ Transplant Act’s Ban on Bone Marrow Donation Compensation: Legal Compensation to Create a Life, But Not to Save a Life,” St. John’s Law Review 85 (2011): 1222-1233.
 I. Glenn Cohen, “Selling Bone Marrow — Flynn v. Holder,” New England Journal of Medicine 366 (2011): 296-297.
 U.S. Deptartment of Health and Human Services, “The Need Is Real: Data,” available at http://www.organdonor.gov/about/data.html.
 Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets (New York: Farrar, Straus and Giroux, 2012), p. 110-113.
 National Organ Transplant Act: Hearing on H.R. 4080 Before the Subcomm. on Health of the H. Comm. on Ways & Means, 98th Cong., 2d Sess. 26 (1984).
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