684 F.3d 852 (9th Cir. 2012)
The National Organ Transplant Act was enacted in 1984 to regulate organ transplants and prohibit compensation for human organs, including bone marrow.1 Following its enactment, a new donation technique known as peripheral blood stem cell apheresis emerged approximately twenty years later, allowing extraction of hematopoietic stem cells from the bloodstream without removing fatty marrow from bones.2 Several individuals and the nonprofit MoreMarrowDonors.org then initiated litigation by filing a complaint in district court.
The plaintiffs include parents of children suffering from leukemia and other anemias who need transplants, a medical professor who has lost patients due to lack of matches, an African-American leukemia survivor who received an imperfect match from his sister and suffers ongoing complications, and MoreMarrowDonors.org, which plans to offer $3,000 incentives targeted at minority and mixed-race donors to address the scarcity of matches for diverse genetic backgrounds.3 The complaint details how the apheresis process begins with injections of granulocyte colony-stimulating factor, followed by blood withdrawal and filtration, regenerating the donated cells within weeks, much like ordinary blood donations.4
The nonprofit alleges that it cannot launch its program because the statute classifies bone marrow as an organ and criminalizes valuable consideration for donations, despite the similarity to permitted blood donations and the critical need for more registered donors, particularly from underrepresented groups.5 The National Marrow Donor Program, funded under the statute, maintains a registry but struggles with locating and motivating potential donors in time.6
Upon the government's motion, the district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and the plaintiffs appealed to the Ninth Circuit Court of Appeals.7
Whether the National Organ Transplant Act prohibits compensation for hematopoietic stem cells obtained via peripheral blood stem cell apheresis?8
The National Organ Transplant Act defines human organ to include bone marrow and prohibits acquisition of any human organ for valuable consideration.9 The statutory term bone marrow refers to the soft fatty substance within bone cavities.10 It does not extend to hematopoietic stem cells circulating in peripheral blood that are extracted by apheresis.11 The statute treats this process analogously to permitted blood donations.12
No. The established facts show that the National Organ Transplant Act was enacted in 1984 to regulate organ transplants and prohibit compensation for human organs, including bone marrow. Applying these facts to the statutory text, the court construed bone marrow according to ordinary usage as the soft fatty substance in bone cavities rather than blood or its components.13 Because apheresis removes only cells already in the bloodstream and the government concedes that compensation for blood donations is lawful, the stem cells obtained by this method are subparts of blood, not bone marrow.14
The National Organ Transplant Act does not prohibit compensation for hematopoietic stem cells obtained via peripheral blood stem cell apheresis.15
Whether the prohibition on compensation for bone marrow donations obtained through the aspiration method violates the Equal Protection Clause?16
Legislation that distinguishes between categories of body material for compensation satisfies the Equal Protection Clause under rational-basis review.17 Congress could rationally conclude that prohibiting payment for bone marrow obtained by aspiration advances legitimate interests in preventing exploitation, commodification of human tissue, and degradation of the organ supply.18 This holds even though the material regenerates and even though compensation is permitted for blood, sperm, and eggs.19
No. The established facts show that the aspiration method requires insertion of long needles into the anesthetized donor's hip bones to extract the soft fatty marrow, which matches the statutory definition of bone marrow exactly.20 The court identified multiple rational bases, including the risk that payment would induce economically vulnerable individuals to undergo the painful and risky procedure, the danger that desperate patients would face extortionate demands from matched donors, and the possibility that compensated donors would conceal medical histories and thereby endanger recipients.21 The legislative history and philosophical sources cited by the court further support a rational concern with treating human tissue as a commodity.22
These policy and philosophical considerations remain sufficient under deferential rational-basis scrutiny even though the plaintiffs' proposed $3,000 incentives are modest and even though the statute permits compensation for other regenerable tissues.23 The distinction drawn by Congress between aspiration of marrow and donation of blood therefore does not violate equal protection.24 The district court's dismissal of this claim was correct.25
The prohibition on compensation for bone marrow donations obtained through the aspiration method does not violate the Equal Protection Clause.26