Parts for Sale

It was a perfectly reasonable question, just out of the ordinary. A nurse with whom I had worked for years was pregnant. She asked, "Should I spend $1,500 on harvesting umbilical cord blood when the baby is born?"

The year was 1999. Stem cells were a hot topic after the 1998 article published in Science (Science 1998:282;1145-7). There were companies offering to freeze umbilical cord blood as a potential source of stem cells in the unlikely event the child, or a sibling, developed a need for it. This nurse would be one of the first patients electing to do this at our hospital. Later that year, the American Academy of Pediatrics would publish its first guideline on cord blood banking. That July 1999 policy was revised in 2007 as "Cord Blood Banking for Potential Future Transplantation" (Pediatrics 2007;119:165-70). The guideline is not without controversy. The past 2 years have seen the publication of several more articles on the ethics of children as bone marrow donors, particularly for siblings. But in early 1999, I didn’t have those resources. Nor was Google available.

The nurse had cared for children with leukemia and genetic diseases, and she had cared for patients who had received transplants. That made her an informed consumer. The potential for stem cells was exciting, but unproven. Would the existence of a source of stem cells that were a perfect match for a child – her child – be a priceless resource or a waste of money? My initial gut reaction was that $1,500 into a college fund would probably be more beneficial for a middle-class family. Of course, I couldn’t predict the Internet bubble or the Great Recession. I did point out that there were nonprofit cord blood banks to which the cells could be donated.

On reflection, it was a complex question, requiring several estimates. Technologically, what was the chance that stem cell therapy would achieve significant clinical use before her baby grew up? What was the chance the child would develop a disease treatable with stem cells? If both those occurred, would having the child’s own cord blood stem cells be an advantage over a histocompatibility-matched sample from an organ bank?

There were ethical implications. Would society foster the development of technology that would only be available to those wealthy enough and insightful enough to have stored cord blood at birth? There were social justice considerations. In kidney transplantation and bone marrow registries, racial minorities are at a disadvantage when seeking matched donors.

It was then, and remains now, an extraordinarily difficult question to answer. As a pediatrician, I routinely dole out canned answers about teething, bedwetting, and pacifiers. But this apparently straightforward question involved cutting-edge technology, medical ethics, financial acumen, and a crystal ball.

Most stem cell technologies remain on the drawing board a decade later. One active technology, limited by the supply of matched donors, is the colloquially-termed bone marrow transplant. As a successful treatment for many conditions, stem cells have value. Rather than the consumer paying to store stem cells, one company now proposes paying $3,000 as an incentive for the donation.

In December 2011, the Ninth Circuit Court of Appeals handed down a decision in the case of Flynn v. Holder. At issue was whether or not it was legal to offer monetary compensation to donors of hematopoietic stem cells. The first several pages of the court’s decision are free from legalese. They provide a readable summary of the technical and ethical implications of buying and selling organs.

There are American markets for buying and selling human body parts, including blood, plasma, platelets, breast milk, hair, sperm, and unfertilized eggs. The National Organ Transplant Act bans compensation for organs, including livers, kidneys, and bone marrow. Flynn v. Holder adds the acquisition of hematopoietic stem cells from circulating blood to the list of acceptable activities.

An ethical analysis suggests that the key characteristics of these acceptable market-based donations of human body products are:

– The donated stuff can with time be regenerated.

– The injury to the donor is minimal and commensurate with the sale price.

– The risks to the donor of more serious morbidity and mortality are minimal.

Note that these principles explain the boundaries of the law. They didn’t form it. Historically, it has been more a collage of ad hoc decisions. Flynn v. Holder adds significantly to the picture mostly by what it did not do. The judges in Flynn v. Holder declined to overrule Congress’s ban on a market for organs.