One of the recurrent themes here has been the role of money in ART and, more specifically, in the egg and sperm market. The general topic of compensation for what are rather euphemistically called “gamete donors” is a controversial one. And I’ve been thinking about it a lot recently, having changed my mind about how much the structure of the market matters after reading some of Rene Almeling’s work on commodification.
Here’s a summary. The question is about whether you can pay people to provide bone marrow used to treat people with leukemia. There’s a shortage of donors and there are particularly acute shortages of non-white donors. An organization (MoreMarrowDonors.org) wants to increase the pool of donors by offering donors $3000 worth of scholarships, vouchers for housing or charitable donations to an organization of the donor’s choosing.
The problem is that there is a federal law that criminalizes offering “valuable consideration” for human organs. It’s quite clear that the $3000 would be valuable consideration. The law also specifically identifies bone marrow among the human organs. Just as important, the law does not list eggs, sperm or (critical here) blood.
Now at the time the statute was enacted, the process for obtaining bone marrow involved large needles and general anesthetics. But as with so many things, technology has brought changes. The common method for obtaining the desired material now is to have the donor undergo five days of injections and then sit in a recliner while her/his blood passes through a filtering machine that gathers the desired cells. Save for the injections, the process looks an awful lot like the sort of plasma or platelet donations for which people can be paid.
MoreMarrowDonors argued that it was irrational (and hence unlawful) to allow payment for blood but not for other cells obtained through a nearly identical process. As you will see from the opinion and news coverage they were successful, winning 3-0.
Among other things, the case illustrates the difficulty in line drawing. It’s easier to be absolute–you could say no money for anything, say. Or you could say you can buy anything at all. The statute in question doesn’t take either extreme approach–it identifies some things you cannot exchange for money but leaves others allowed and this will inevitably lead to hard questions about which things fall where (and of course, why).
The opinion contains a nice little discussion of commodification of body parts and the practical and philosophical reasons why Congress might have criminalized it. It’s worth having a look (find page 20565 and go from there). There’s also a note in the opinion about our willingness to allow payment for participation in drug trials and the like. That payment raises an array of similar issues (and is also something I’ve been thinking about.)
There’s a lot to think about here, but this decision does seem right to me. We’ve drawn a line (or at least, our Congress has done so for us). It may not be the right line–that’s a larger discussion to have. But given where it has been drawn, it seems to me this falls on the permitted side of the line. And on the whole I think that’s a good thing–because surely it would be good if more people were willing to step up as marrow donors.