Gentle Marrow Donations Vault Organ-Sale Ban

(CN) - A federal ban on selling organs does not apply to sick children who need bone marrow transplants to survive, the 9th Circuit ruled Thursday, finding that modern technology has made the once painful and invasive procedure little different than donating blood.

The ruling gives new life to the California-based nonprofit MoreMarrowDonors.org, which has stumbled in its plan to offer donors $3,000 "awards," such as scholarships or housing allowances, because bone marrow is classified as an organ that can't be legally bought or sold under the National Organ Transplant Act.

The nonprofit and a group of plaintiffs who have personally been affected by the ban challenged that classification as irrational and unconstitutional given a new, less invasive method of extracting marrow cells that has been developed over in the last 20 years.

U.S. District Judge Valerie Baker had dismissed the complaint for failure to state a claim, but a three-judge panel of the 9th Circuit reversed that ruling Thursday, finding that the ban on buying and selling organs does not apply to bone marrow extracted through apheresis.

The term bone marrow transplant is actually a misnomer since it is actually the stem cells found outside the marrow that are harvested. Once painful and fraught with long needles and potential complications, donations can "now be accomplished through apheresis without removing marrow, and the donor's body quickly regenerates the donated stem cells," according to the ruling. Bone marrow is constantly in short supply, especially for minorities and those of mixed race, for whom exact genetic matches are difficult to find.

Defined as the removal or separation of something, apheresis has transformed donating bone marrow cells into an act comparable to giving blood, the panel found. But Congress could not have anticipated the method for exclusion from the ban because it did not exist when the National Organ Transplant Act passed in 1984.

"The main difference between an ordinary blood donation and apheresis is that instead of just filling up a plastic bag with whole blood, the donor sits for some hours in a recliner while the blood passes through the apheresis machine," Judge Andrew Kleinfeld wrote for the Pasadena-based panel. "This same apheresis technique is sometimes used for purposes other than bone marrow donations, such as when the machine is set up to collect plasma or platelets, rather than stem cells, from a donor's blood. When it is used for these other purposes, the identical technique is called a 'blood donation' or 'blood plasma donation.' When used to separate out and collect hematopoietic stem cells from the donor's bloodstream, apheresis is called 'peripheral blood stem cell apheresis' or a 'bone marrow donation.'"

"The Secretary of Health and Human Services has not exercised regulatory authority to define blood or peripheral blood stem cells as organs," he added. "We therefore need not decide whether prohibiting compensation for such donations would be unconstitutional."

The panel vacated the lower the court's ruling remanded the case.

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