Court rejects Obama plea to reconsider bone marrow ruling


A federal appeals court Tuesday unanimously rejected a request from the Obama administration to reconsider a ruling that bone marrow donors can be compensated for providing the life-saving stem cells from their blood.

None of the 25 active judges on the U.S. 9th Circuit Court of Appeals took up the petition by Atty. Gen. Eric H. Holder Jr., asking for the full court to review a December ruling that the government fears could lead to money influencing donation decisions.

The Dec. 1 ruling by a three-judge panel redefined bone marrow cells harvested from a donor’s bloodstream as blood parts, not organ parts. Filtering the stem cells from a donor’s blood through a process known as apheresis is how most marrow donations are collected now, but it hadn’t been developed yet when the 1984 National Organ Transplant Act deemed marrow and its parts to be organs and covered by the law’s ban on compensation.

The 9th Circuit ruling now stands as the law of the land, as no other courts in the federal judiciary have weighed in on the question of whether the newer donation method is exempt from the compensation ban. Before the development of apheresis, a procedure similar to giving blood, donors had to be anesthetized as surgeons inserted a large needle into the hip bone and siphoned out the marrow cells.

The 1984 act of Congress was intended to prevent wealthy patients in need of a transplant from luring the poor into submitting to a painful and risky procedure to make money.

Three years ago, after the less intrusive donation method was in widespread use, a group of cancer patients and their families, a bone marrow transplant surgeon and a California nonprofit proposing a pilot project for compensation filed a lawsuit challenging the definition of marrow cells as organs. The lead plaintiff in the case is Doreen Flynn of Lewiston, Maine, a single mother of five who is trying to ensure that a broader field of potential donors is available when her three daughters who suffer from Fanconi anemia need marrow transplants after surgery for the potentially fatal genetic disorder.

Unlike donated blood, marrow is much more difficult to match for many recipients, especially those of mixed race. More than 3,000 Americans die each year waiting for a suitable marrow match, according to The group joined the lawsuit to get legal clarity on whether it can offer scholarships and housing payments of up to $3,000 to encourage more marrow donations. President Shaka Mitchell, who has an African American father, a Latina mother and a daughter with his Caucasian wife, said the pilot project has been “in limbo” awaiting the courts’ determination of whether marrow cells are subject to the compensation ban.

Despite the unanimous position of the 9th Circuit, the Supreme Court may want to weigh in on the constitutional questions raised in the lawsuit and the substantial changes in the organ transplant law’s interpretation, said Jeff Rowes, the Institute for Justice lawyer who argued the case for Flynn and the other plaintiffs.

Justice Department spokesman Charles S. Miller said the government would have no comment on the latest ruling.

The U.S. solicitor general has 90 days to decide whether to seek U.S. Supreme Court review.