Blood and Bone Marrow

October 30th, 2009 - by Quincy

The debate over the federal takeover of America’s health care has absorbed the attention and efforts of political activists of every persuasion. But two days ago the Institute for Justice, the nation’s premier public-interest law firm, launched a case that starkly illustrates the bad results of government interference with individual liberty in healthcare decisions.

Section 274(e)(a) of the National Organ Transplant Act reads in part, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” If an individual violates this provision, that individual is subject to a penalty of up to five years in prison and or a $50,000 fine. Section 274(e)(b). And, thoughtlessly, congress chose to include bone marrow in the definition of human organ. Section 274(e)(c).

What this means is that even if you happen to have a disease that requires a bone-marrow transplant, like the plaintiffs in the suit filed by the Institute for Justice, the law forbids you from purchasing bone-marrow from potential donors who need an incentive other than good will and social approval. If you do make such a purchase, you are a criminal under the present law.

Now, if you are a liberty-minded individual, a question may have bubbled up in your mind during the above exposition: How under the Constitution of the United States, can congress have the power to criminalize the purchase of bone marrow? Where did congress get the power to regulate what an individual chooses to do with his or her own body? The answer to this question is found in the final words of Section 274(e)(a) quoted above, “if the transfer affects interstate commerce.” This phrase invokes what is known in constitutional law as the “Commerce Clause.” This horribly abused bit of language is found in Article I Section 8 clause 3 of the constitution: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Congress has invoked the Commerce Clause to regulate everything from the relationship between employers and employees (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)), to home gardening (Wickard v. Filburn, 317 U.S. 111 (1942)). Congress has persuaded the Supreme Court to go along with it in expanding this power so far that it can now regulate any action that could in any way have an impact on interstate commerce—even if only in the aggregate.

Thus, through a very strained interpretation of a single sentence, congress can regulate any transaction, including the purchase of bone marrow. But challenging the Commerce Clause is not the subject of the Institute’s law suit—sadly we are too far down the road to statism now for that challenge to be effective. Even if you accept the idea that congress should paternalistically forbid transactions that it decides may be unwise, prohibiting the sale of bone marrow doesn’t make sense. So the challenge brought by the Institute for Justice is based on the doctrines of equal protection and due process:

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Institute for Justice Press Release

In other words, there is no legitimate reason to distinguish between compensation for blood donations and compensation for bone marrow donations. Congress just happened to ban one and permit the other. Consequently, individuals who could otherwise be successfully treated are dying because they are forbidden from using money to motivate compatible donors.

The fact that congress chose to irrationally regulate the sale of bone marrow gives the lie to those pundits and politicians who insist that the federal health care takeover now in progress will not restrict access to medical care. Is it rational to expect that once the federal government is providing health insurance, setting the prices that doctors can charge, and forcing individuals to purchase the type of health care congress approves of, that we can avoid more laws that are just as inane as the current bone marrow regulations? Not hardly.

To add even more irony to the picture, read the stated intent for the National Organ Transplant Act: “To address the nation’s critical organ donation shortage and improve the organ matching and placement process, the U.S. Congress passed the National Organ Transplant Act.”

Health care isn’t a social project that well-heeled bureaucrats can beneficently tinker with. They are not gods, kings, or even experts. They are exceedingly fallible men and women who—even when they are not in the pocket of a special interest—somehow manage to get themselves into moral, financial, and legal trouble.

As Chip Mellor, the president and general counsel of the Institute for Justice, wisely said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die. ”

3 Responses to “Blood and Bone Marrow”

  1. Quincy says:

    Nice news article and video about the Institute for Justice law suit.

  2. Elise says:

    I was totally just talking about this the other day. Not bone marrow, but kidneys. Why the heck is it illegal to sell your kidney? If it is legal to terminate “your” fetus, why not your kidney? That is probably a really bad comparison, but if someone wants to buy my kidney for $1 million dollars, why can’t I sell it to them?

  3. Quincy says:


    I agree with you that the government has no right to stop a person from selling his/her kidneys, but that is an unpopular view.

    Here is a group of blog posts by the lead lawyer on IJ’s bone marrow case. Notice in some of the negative comments that the possibility that IJ’s case might lead to the decriminalization of kidney sales is itself listed as a reason to uphold the bone marrow regulation.

Leave a Reply