How does bad economics become bad law? One thing that doesn't help is when legislators can't be bothered to read the bills they pass. Some activists recently launched a Read To Vote campaign that demands all elected officials and especially members of Congress to actually read legislation before voting. If they did, maybe we wouldn't have the situation we do with the 1984 National Organ Transplant Act—which bans people from being paid for donating bone marrow, despite the fact that monetary compensation for blood plasma is common practice, and the bill itself even explicitly says it should not criminalize compensation for "renewable tissue" (like blood and bone marrow, as opposed to things that can't regenerate like organs).
Congress threw "bone marrow" into the bill (which bans you from doing things like selling your kidney to the highest bidder) at the last minute probably because it "sounds like an organ," I was told by Robert McNamara, an attorney at the Institute for Justice. The Institute for Justice (IJ), you may recall, is the DC-based pack of libertarian lawyers behind many prominent lawsuits (they were the ones who sued the city of New London, Conn., to protect Susette Kelo's house in a now infamous Supreme Court decision). Today they filed suit in Los Angeles on behalf of a nonprofit group, MoreMarrowDonors.org, that seeks to offer people money to be used for college scholarships, charity gifts, or housing allowances if they agree to donate their marrow. The problem is that if MoreMarrowDonors.org did that, it would be committing a felony under the law punishable by up to five years in prison. "[Compensation for bone marrow donation] is treated exactly like black-market organ sales," McNamara told me. All because of a legislative decision that was "almost an accident."
According to IJ, at least 1,000 Americans die every year from blood diseases such as leukemia because they cannot find a matching marrow donor in time. Finding a match isn't as simple as finding someone with the same blood type as you, or finding someone willing to part with his or her kidney. Exactly how difficult it is depends on ethnicity to some extent—the average Caucasian can find a donor 75 percent of the time, but for African-Americans it is only 25 percent. These low odds mean that it is much more difficult for altruistic marrow donations to meet the demand for transplants than for other types of medical donations such as blood. It's prohibitively expensive to store bone marrow for long periods of time. That means that if you ever need a transplant, you have to jump over two hurdles: First, you have to hope that someone whose marrow is a match to your body happened to sign up in the registry under the National Marrow Donor Program. Second, you have to hope that that person is still available and can be contacted in time.
So could monetary compensation help solve this problem and reduce the number of people who die for lack of a transplant? It makes sense that if you pay people for something, you'll get more of it. But there are unique elements to marrow transplants that might make compensation seem less appealing—in the case of MoreMarrowDonors.org, a potential donor would only get the money in the possibly-slim chance that he or she will actually get called up to donate. The IJ lawyers respond that there's only one way to find out if compensation could save lives. "We don't know [how many lives would be saved], and it's illegal to try and find out," says McNamara.
Check out this video IJ put together for more details.