Mother Challenges Law Prohibiting Organ Sales

Thirteen years ago Doreen Flynn gave birth to a daughter with Fanconi anemia, a rare inherited blood disorder in which the bone marrow does not make enough red blood cells. Six years later Ms. Flynn underwent an in vitro fertilization (IVF) procedure and had two more daughters in the hope that one of them would be a suitable donor for her older daughter. But in an ironic twist of fate, embryonic screening failed to detect that they, too, would suffer from the disease. Now she has three daughters with the disease, instead of just one.

All three children will need bone marrow stem cells from an unrelated donor in order to survive. They could wait for a match to potential donors currently registered with the National Bone Marrow Donor Program, but there’s a problem; almost half of all potential donors fail to complete the donation procedure when they are matched to a recipient, leaving the recipient without the treatment he/she so desperately needs.

The National Organ Transplant Act of 1984 made it illegal to buy or sell "organs or organ parts".  Under the old rules that included bone marrow. Ms. Flynn wanted to see that change, so she became the lead plaintiff in a lawsuit that challenged the prohibition against selling bone marrow stem cells. The main argument in the lawsuit was that bone marrow, unlike a kidney or a lung, regenerates in a matter of weeks. Further strengthening the argument is the fact that the technology for collecting stem cells from bone marrow has changed since the National Organ Transplant Act was written. Instead of collecting the donor’s bone marrow by a needle inserted into the hip bone, donors now receive a drug to stimulate the production of the precursor cells. A machine then separates the precursor cells from whole blood by a technique called peripheral apheresis. In effect, Ms. Flynn's lawsuit argued that bone marrow stem cells should now considered more like body fluids such as blood plasma or sperm (which you can sell) than an organ such as a kidney or heart (which you cannot).

In December of 2011 the U.S. Court of Appeals for the 9th Circuit  ruled in favor of Ms. Flynn.  Bone marrow stem cells can now be sold, but only if they are collected from the bloodstream by apheresis, not from bone.  The court also stipulated that any payment would need to be in the form of scholarship vouchers or donations to charity.

It appears the new ruling will stand, because the U.S. Attorney General has decided not to ask the U.S. Supreme Court to review the case.