Some bone marrow donors can now receive compensation for their donations without committing a felony, a federal appeals court ruled on Thursday.
The court said that new technologies for transplanting bone marrow make the tissue more like blood and less like an organ. The National Organ Transplant Act prohibits compensation for human organs, such as kidneys, but allows payment for renewable tissues such as blood.
A California nonprofit MoreMarrowDonors.org, parents of sick children and a physician sued U.S. Attorney General Eric Holder in 2009, challenging the ban on compensation for bone marrow donations. They argued that allowing financial incentives for bone marrow donation was crucial because of the extreme difficulty of finding a genetic match.
The suit said the ban violated the U.S. Constitution because it treated bone marrow as a "human organ" while allowing payments for blood, sperm and eggs.
The government said that payments could lead to exploitation of people in financial need.
A California district court sided with the government, but the 9th Circuit Court of Appeals disagreed. The court found that new methods of harvesting stem cells from the donor's blood stream rather than the bone did not amount to an organ transfer.
"Once the stem cells are in the bloodstream, they are a subpart of the blood, not the bone marrow," Judge Andrew Kleinfeld wrote on behalf of the three-judge panel.
Charles Miller, a spokesman for the Justice Department, declined to comment on the litigation.
"This decision fundamentally changes how deadly blood diseases will be treated in America," said Jeff Rowes, a senior attorney at the Institute for Justice and lead attorney for the plaintiffs. He said one of the biggest challenges has been encouraging people identified as a rare match to go through with the donation.
MoreMarrowDonors.org had wanted to offer donors $3,000 in scholarships, housing allowances or gifts to charities of their choice. Rowes said any form of compensation is now available to recruit donors, and patients can now ask their insurance companies to pay donors identified as a match.