By Peter Jaworski
A former student of mine, Doug Grant, founded a company called Hemeos. Hemeos was founded in the wake of the Ninth Circuit Court of Appeals decision in Flynn v. Holder. Flynn held that paying people for bone marrow donations through a process called peripheral blood stem cell apheresis was perfectly legal. They reasoned that this type of donation is too similar to an ordinary blood donation, or blood plasma donation, for the former to be prohibited while the latter is permitted.
That ruling came down in 2012. With over 1,000 people dying every year for want of a matching donor — a problem that especially affects minorities — you would think that investors would be lining up to get Hemeos off and running. But the Department of Health and Human Services has the power, under the National Organ Transplant Act of 1984, to simply change the language of the rule, and make compensating bone marrow donors through apheresis illegal again. And it looks like they intend to.
They proposed a rule in 2013 that would make it illegal again. They set a deadline of July 2015 for a final decision. But they were crushed with over 500 public comments, and so put it off. My understanding is that the overwhelming majority of those commenters were opposed to the new rule (sample letter). And of course they were. However, HHS still had an “out”. They could claim that while economists can argue that it would be more “efficient,” and while other social scientists can complain about the fact that they can’t run studies to test the efficacy of a compensatory system, they had ethics on their side. Exploitation! Coercion! And, of course, commodification! The three ethical terrors of markets in sacred things, like bone marrow.
But none of those arguments actually apply in this case. In fact, all of those arguments are flawed.
What’s worse is that they simply fail to consider the (significant) moral weight of preventing unnecessary deaths. Even if they were right that exploitation, for example, counts against permitting a compensatory model, or that a commodification attitude towards our bodies is a bad thing (note: will some social scientist please compare jurisdictions where commercial surrogacy is permitted with those where they are illegal to test people’s attitudes towards women’s reproductive labor?), those considerations would still be outweighed by preventing, say, 500 unnecessary deaths.
Better that 500 people think of their bodies as commodities than that 500 people die. Better that 500 people be exploited in this way than 500 people die.
They had this simple “out”, until today. After today, they will have to rethink their moral position, or at least explicitly deal with some of the arguments against their view. They can’t lazily rely on whispering the magical ethical terrors as a way to stop the conversation.
Today, we released an open letter from professional ethicists about this issue. Plenty of bleeding heart libertarians are signatories, but so is Peter Singer, and Kim Krawiec, and Michelle Meyer, and Jeffrey Moriarty, and others who are not libertarian. The argument in the open letter is not a “Markets without Limits” argument. It is specifically tailored to this issue. It is sufficiently ecumenical to capture any and every political viewpoint.
The letter offers arguments against the claims made by HHS and others in support of the new rule. It also argues forcefully that making compensation for bone marrow donations through apheresis illegal is itself unethical. What the HHS proposes to do is unethical. They should stop trying to pass this rule.
Paying people for bone marrow donations through apheresis is legal. It should continue to be legal. A compensatory model will save more lives. That’s sufficient reason to keep it legal.
Peter Jaworski is a professor of Strategy, Ethics, Economics and Public Policy at the McDonough School of Business at Georgetown University.
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