Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
The WSJ Law Blog yesterday ran a post about a suit in which the plaintiffs are challenging a portion of the 1984 National Organ Transplant Act, which bans the sale of body organs.
At issue: whether a federal law that criminalizes the sale of bodily material is constitutional when applied to bone marrow.
The case was brought by a nonprofit organization, called MoreMarrowDonors.org, on behalf of families seeking matching donors for bone marrow transplants. They’ve claimed that allowing compensation for bone marrow would greatly increase the available supply. Bone marrow transplants are often required for patients with certain types of deadly blood diseases, including leukemia.
The plaintiffs want to change part of the 1984 National Organ Transplant Act, which prohibits the sale of body organs, including bone marrow cells. They contend Congress made a mistake when it passed the law, which was intended to prevent a marketplace for irreplaceable organs such as kidneys or livers.
They argue that unlike those organs, bone marrow cells replenish themselves a few weeks after they’re donated.
There is no question that this is an fascinating issue, but it shows the huge gap between good sense on the one hand and constitutional law on the other. The correct view in these cases is to think that freedom of contract, and not equal protection, is the appropriate way to think about this issue. What possible reason is there for the state to intervene in this transaction that produces gains all around?
This is not a case of a hazardous transaction that could work harm to vulnerable individuals. Indeed I would go further and think that the entire inexcusable shortage in kidneys could be cured by allowing some kind of market. The risks of coercion, if any, do not require shutting the down the system of exchange especially when we consider one fact. The expected loss of life from the transplant of a healthy kidney is under two weeks. The gains are over 20 years. Talk about gains from trade, at least if you allowed cash compensation.
But the modern constitutional law does not operate on such rational principles. In cases that deal with all sorts of health issues, including the ability of the FDA to control and dictate drug use, the watchword is 'rational basis'. That somewhat arcane phrase means that any plausible reason to regulate is sufficient to neutralize the many reasons that come on the opposite side of the transaction. There are so many statutes that pass muster under this standard, that this one will to. One can hope for the opposite result, but do not hold your breath on this one, alas.
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Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
I agree with Richard on both the policy and the Constitution, but with a somewhat different take. I agree that the Constitution as currently interpreted by the courts would not find this law unconstitutional. If Congress wants to ban the sale not just of organs but bone marrow, the courts have generally deferred to these policy choices.
And I agree that the better policy choice here is to allow individuals to contract to sell their bone marrow, or something like a kidney. Both parties could be much better off, and thus society as a whole is better off, which is the purpose of allowing contracting in the first place. I don't find convincing the arguments that this would allow the very rich to buy bone marrow or a kidney from the very poor. We allow contracts between the very rich and very poor on a great many other things, and the economic imbalance does not bother us there. The question is really whether the object of the contract itself should give us pause.
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Where I am unsure, and may part ways with Richard, is whether this is really an area where economic liberty, as expressed through the due process clause of the Fourteenth and Fifth Amendments, should include a constitutional right to sell one's own bone marrow or kidneys. Even if economic liberty includes a right to contract, there are some things that we don't allow someone to sell. Slavery is the most obvious example. I think laws against prostitution may not make much sense as a matter of policy, but I am not sure that the right to sell sex is actually of constitutional significance. The hard question for me is whether the sale of bone marrow is like slavery and adultery or not.
A related question is whether the courts are the best place to make this decision. If it is a moral choice, where we are banning the sale of bone marrow or a kidney on purely moral grounds rather than on economic efficiency, then legislatures are going to be superior institutions to courts to discern and implement the moral sense of the community rather than the small number of Justices of the Supreme Court.
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
John raises of course the central issue, which is the extent to which any system of liberty of contract has a constitutional basis, and if it has one, how far that liberty goes. Even those people who insisted on the liberty of contract approach took the view that regulation for health, safety and morals were permissible, which would cover the prostitution case. The issue in this case is how serious does one deal with the health and safety issues where the presumption is set in favor of voluntary exchange. Thus in some of these situations there are coercion risks that really matter, and on those some degree of regulation would be appropriate, although it is often difficult to determine what. Thus, for example, allowing people to surrender a kidney for payment without being informed of the risks of donation would not pass constitutional muster even if there are arguments that voluntary institutions would grow up to deal with that risk. But in cases where the risks are known to be minimal, a relatively simple disclosure system could work.
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
I think that there are regulatory issues for the bone marrow sales but I don't think that the parallels to either slavery or adultery are involved in these cases. The first, slavery, involves transactions that are never observed in voluntary markets and which deny the actor the ability to undo the transaction once consummated. The second, adultery, involves conduct that is itself a breach of contract in most cases. The health issues here are of a different order. It is the unwillingness to deal with these issues on an individuated basis that is so discouraging. In First Amendment law, judges are constantly willing to ask how to balance privacy interest with speech interests, and to look close at particular legislation schemes.
Jan '11
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
We are understandably hesitant to create or tolerate a market that depends on selling body parts. A market rewards behavior. Will people turn to the market in a moment of financial desperation? Under other circumstances, I would consider this an academic discussion and an intriguing exercise. But we have circumstances that cloud the matter.
At the moment, the law considers fetuses to be the property of the mother. Couple that with the promise of stem cell research, and you have a mortifying scenario. A woman could sell her "property," i.e., the stem cells of her fetus, and then abort the child later. It creates a market (and therefore a motive) for creating fetuses who are never intended to be born.
What would prevent this scenario? Legally, I don't see anything. Please tell me I'm wrong.
Oct '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Apart from the constitutional issues of prohibiting compensation for bone marrow donors, how is this (except for being more medically invasive to the donor) any different than paying people who donate blood which, as far as I know, may be considered disreputable but is not prohibited by law? What about people who sell their hair to wig manufacturers?
Blood cells and plasma, hair, and bone marrow are all regularly replaced in healthy individuals. (Well, in my case, not so much with the hair.)
As a flaming libertarian, I would further assert that prohibiting the sale of a kidney violates the principle of self ownership, but since vast snowdrifts of legislation deemed constitutional also do this, it's hard to argue on that basis.
Edited on Feb 16, 2011 at 11:26amMay '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
As a matter of policy, I'm sure a major concern is whether or not government could adequately verify the source of an organ. Even if it bears the stamp of a certified provider (clinic / hospital), there is a strong financial incentive for providers to "outsource" through the black market.
I remember stories from years ago about people being mugged in New Orleans alleys and waking up to find their kidneys missing. A criminal can make a lot of money overnight just by killing and gutting one person.
Nov '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
From the Blackmun opinion in Roe (not my favorite, obviously): "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
If aborting a fetus is protected by "privacy" (presumably because it can be viewed as a personal medical issue), then surely any other medical procedure is protected too, barring some compelling state interest.
Now we're in strict scrutiny land and everything is fixed, right?
Edited on Feb 16, 2011 at 11:20amRe: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Aaron,
As your example from New Orleans (caveat: a wonderful city in many other ways) illustrates, the problem of black market organs exists prior to a legal framework for voluntary, compensated donations. And based on everything we know about prohibition of virtually any kind, I think it safe to say that the premium for black market organs is actually much higher in a situation where legal alternatives are heavily circumscribed. Would a more liberal policy obviate this trend? Probably not in its entirety. But it would likely diminish it.
Aaron Miller: As a matter of policy, I'm sure a major concern is whether or not government could adequately verify the source of an organ. Even if it bears the stamp of a certified provider (clinic / hospital), there is a strong financial incentive for providers to "outsource" through the black market.
I remember stories from years ago about people being mugged in New Orleans alleys and waking up to find their kidneys missing. A criminal can make a lot of money overnight just by killing and gutting one person. · Feb 16 at 10:54am
Feb '11
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Dr. Walter E. Williams has weighed in on this before. His opinion is that private property rights rule. I own my body. Therefore, I can sell my body parts. If I can't sell them, then do I really own them? Ergo, then do I really own myself?
If I die, you can harvest my organs, but you will pay my estate a hefty amount for each and every organ, skin graft, eye lens, etc.
It's my body and I'll charge what the traffic will bear. I believe such a philosophy brought down a recent New York Governor. He's now got his own talk show on Client Nine News (aka CNN)
This is not to say that others aren't free to donate their organs. I object to some state laws currently being considered that would require one to 'opt out' of donating body parts/organs. I would not only 'opt out', I would charge extra in such states.
May '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Why is this dangerous nonsense still law? You'd think the federal government was the gravest threat to the American people after Islamic radicals, given the number of people killed by organ prohibition.
Jun '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
"The issue in this case is how serious does one deal with the health and safety issues where the presumption is set in favor of voluntary exchange. "
Well, in the case of voluntary exchange of labor in dangerous professions, we have OSHA, which is a big disaster.
Bone marrow is an interesting subject, as the donation involves more inconvenience than a blood or pheresis donation, yet there is something quite distasteful to me about being paid for any of these.
Dec '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
I do not think that most people understand how a modern bone marrow transplant works. There was a time when bone marrow was harvested by piercing the hip bone with a large hypodermic needle and sucking out the marrow. This was done multiple times to get enough marrow. It is seldom done this way now.
A modern bone marrow transplant is technically called a stem cell transplant. This has nothing to do with embryonic stem cells, so nobody get upset. The donor is given a drug that increases the production of stem cells. These cells get into the blood stream. The blood is withdrawn from one arm and is put through a machine that separates the stem cells from the blood and the blood is returned to the donor through his other arm. The stem cells are then given to the patient trough an IV line.
I think the donation process takes a couple of hours.
Jun '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Actually, there are two different types. The surgical procedure is still used, but I have no idea how often compared to the PBSC donation you describe. The National Marrow Donor Program has all the details. Either method involves some discomfort, headaches, etc., so it's more involved than pheresis or blood donations.
May '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Here we are up against some fundamental difference between libertarians and the kind of conservatism to which I subscribe.
A human community is more than a network of business transactions. It seems to me a local community or state or nation should be able vote to pass laws saying, "Here we draw a line. No trafficking in human flesh." Human flesh is not property in the same sense that the trees on my lot are my property.
If I am convinced that a society that encourages (through a variety of incentives) people to be generous in donating their non-vital organs while it prohibits the commodification of human flesh, then I will vote accordingly.
To me, the constitution is about protecting the rights of communities, not just individuals.
May '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Similarly, I think a local community ought to be free to pass laws keeping stores closed on Sundays or Saturdays, say.
Dec '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
When my wife had her transplant the doctor told us that they do not do the surgical procedure much anymore. What that translates into in terms of percentage, I don’t know.
Dec '10
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
Could you please point to the portion of the constitution that causes you to believe that?
Edited on Feb 16, 2011 at 1:56pmRe: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
The issue of desperation and worse is what characterizes today's kidney markets with major shortages and all sorts of intrigue over the administrative allocation of shortages. Organized markets work on longer time horizons, such that with ready availability the uncertainty is much limited. There used to be a high premium for those (tall, blond) women who where chosen to supply eggs for pregnancies. Those prices have dropped as the procedures become well known and the practices well established. Kidney markets, in particular, look more frightening because of the huge rhetoric about how these markets would work if legalization were part of the game.
As to the fetus and stem cell issue, the prior question is the moral status of the fetus. I have always been on the pro life side of this issue, so that sale is impermissible for the same reason that abortion is subject to real constraints. But go the other way on abortion and it is hard to fight a rear guard question on this matter. So you are half right. There is no stopping point once the abortion on demand position gains traction.
Re: Is Law Criminalizing Sale and Purchase of Bone Marrow Constitutional?
The sale of blood (which can raise lots of complications) is generally seen as less intrusive than bone marrow transplants which are painful. This battle of analogies continues apace. Indeed sales of blood do help to alleviate shortages.