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Conference Explores Emerging Issues in Sale of Human Bone Marrow, Organs

April 16, 2012

Chilled to the Marrow: Compensating Tissue & Organ Donors After Flynn v. Holder brought legal and medical experts to the law school on April 13 to survey a range of legal and ethical issues in a changing medical landscape.

Sponsored by the school’s Health Law Program, the conference included presentations by legal scholars, physicians and ethicists.   One panel included Jeff Rowes, the attorney who represented the plaintiffs in the Flynn v. Holder case, in which the U.S. Court of Appeals for the Ninth Circuit in 2011 allowed the sale for transplantation of blood stem cells acquired through certain means.

Presentations by Harvard Law School Professor I. Glenn Cohen and Northeastern University School of Law Professor Kara Swanson offered a historical perspective, starting when blood donation was defined as a civic duty to benefit soldiers in the 1930s, to current patterns in “transplant tourism,” whereby affluent patients go to the developing world to buy organs that domestic law prohibits in the U.S.  Assumptions that altruism reduces costs and the risk of diseased “body products” while avoiding exploitation of donors have shaped policies, the speakers said.  Fine said regulatory structures could be put in place to prevent sellers of kidneys and other organs from exploitation and coercion.

Jan Weinstock , General Counsel of the Gift of Life Donor program provided an overview of its donor program, explaining that its registry is the kind you can sign up for when you get your driver license.   Approximately 45 percent of the Pennsylvania population participates in the program, Weinstock said.  Weinstock also explained that there are other potential type of donor programs.  For example, Spain’s program automatically places people on the registry and gives them the option to opt-out while Israel has a quid pro quo system where agreeing to donate gives you better positioning on the registry should you ever need a transplant yourself.

Rowes, attorney for the plaintiffs in the Flynn v. Holder presented an overview of the case.  At issue was whether it was unconstitutional for the National Organ Transplant Act to prohibit compensation for bone marrow donated via “peripheral blood stem cell apheresis,” a method for extracting bone marrow stem cells from the blood stream rather than directly from the bone, Rowes said.  Although it did not decide the constitutional question, the U.S. Court of Appeals for the Ninth Circuit found that peripheral blood stem cell apheresis was not prohibited by the National Organ Transplant Act because the process was more analogous to simple blood extraction, Rowes added.

Dr. Nancy J. Bunin, director of stem cell transplantation at the  Children’s Hospital of Philadelphia provided a comparison between traditional bone marrow extraction and peripheral blood stem cell apheresis, the method of bone marrow extraction at issue  in Flynn.  Bunin explained that apheresis is quite different than the traditional method of extracting bone marrow which is a quasi-surgical procedure requiring a long needle to extract marrow from inside the bone.  Although traditional bone marrow extraction methods are somewhat invasive, they have very low risk of side effects and patients are usually discharged the same day, Bunin said.  On the other hand, apheresis requires careful screening to ensure that the donor and transplant recipient tissue types are matched, Bunin said.  Failure to match tissue types could result in graft versus host disease, a potentially fatal disease where the white blood cells in the donated marrow attached the host cells, Bunin added.

In contrast, Dr. Stephen R. Guy, director of kidney and pancreas transplant at Hahnemann University Hospital explained that the kidney transplant process is relatively low risk.  Guy added that, if a donor could be found through sanctioned and non-coercive methods, modern kidney transplant is much preferred to dialysis because it is low risk procedure that is less costly than dialysis which could also cause serious complications.

The question of coercion is complicated since altruism itself is not always clear cut, Arthur Caplan, director of the University of Pennsylvania Center for Bioethics, said during the lunchtime keynote.
When a donor assumes the risk of offering an organ to a loved one, they might feel more pressured to do so than a desperate seller in the developing world, Caplan said.  At the same time, he added a stranger who offers an organ for purely humanitarian purposes ought to trigger questions.

“The question we should ask is: are they either really ethical heroes or crazy beyond belief,” Caplan said. 

WHYY previewed the conference in a story that aired on April 12.