Last week the 9th circuit court of appeals in San Francisco rejected an Obama Administration request that it remain illegal for bone marrow donors to receive financial compensation.

The United States Justice Department insisted that bone marrow is covered under the 1984 National Organ Transplant Act, and therefore cannot be sold. The only problem, according to The Institute for Justice, the group that argued for compensation when the case was originally heard back in December of 2011, is that there’s no real reason to classify bone marrow as an “organ,” and as far as they can tell bone marrow wmas added into the 1984 law by mistake.

The reason the issue of compensation is coming up now is that the process by which marrow is extracted has changed dramatically in the last couple decades. In the nineties a process called aphareseis was developed. It allows donors to take a medication that causes them to create more marrow stem cells, the excess is forced out of the bone and it can be extracted through the blood. The old way of painfully extracting actual marrow with a needle through the hip is only used a third of the time now. The lawyers for the Institute for Justice argue that it’s much more like donating blood than harvesting an organ. The ninth circuit apparently agreed, striking down the ban on payment for marrow donations.

However, the largest donor registry in the world, The National Marrow Donor Program, is not convinced. They say a system based on compensation is far less effective than one that relies on the human desire to help. Other critics worry that allowing compensation would mean rich people are more likely than poor to get the lifesaving treatment and could lead to an underground market for black market marrow. Proponents on the other hand call that laughable and say that right now demand is far outstripped by supply.

Will the ninth circuit’s ruling save lives or cost them? There’s not much of a problem with blood or plasma being sold on the black market, but could it happen with bone marrow? Will this be a slippery slope? If compensation for marrow is now legal, are kidneys and lungs next?

Guests:

Robert McNamara, Attorney, Institute for Justice, the group that argued for allowing compensation on behalf of several cancer patients and the More Marrow Donors dot org (a California non-profit that wants to give people scholarships and housing payments for donating marrow)

Dr. James AuBuchon, President and CEO, Puget Sound Blood Center (a community-based organization in Seattle serving Western Washington)