Do You Get What You Pay For? And What Can You Pay For, Anyway?

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.

Anyway, with the commodification problem in mind, consider this fascinating decision from the United States Court of Appeals for the Ninth Circuit.   The press coverage is also worth a look.

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 ( 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.



2 responses to “Do You Get What You Pay For? And What Can You Pay For, Anyway?

  1. With the new method I see less risk although I do not know if there are any known adverse risks for the shots prior. Having said that it is more like a blood donation than an organ donation. Thinking further they may also be more similar as if the cells are in the blood then they could simply harvest the cells from blood donations if they could figure out how to get past the rejection factor.

    BTW: mothers are given the chance by some agencies to be *awarded* scholarships for choosing adoption…that crosses the line far more than this ever could. I never have heard of how many who were given the chance to be *awarded* scholarships actually got them but my guess it would be 100%…

    • There is surely less risk (no general anesthetic) but it isn’t risk-free. The court decides that being risk-free isn’t the correct criteria because that statute allows you to be compensated for participating in medical research and providing eggs and both of those involve risk. It’s important to see that the court isn’t deciding where a line should be drawn–that’s what it refers to as a question for Congress–but rather the question of which side of the line drawn in the statute this particular practice falls.

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