Freedom to Live - The Fight for Bone Marrow

The case is Flynn v. Holder. And it has potential to be the grand slam team Liberty has been waiting for.

The Institute for Justice (“IJ”) recently brought suit challenging the constitutionality of the National Organ Transplant Act (NOTA), an act prohibiting any person from knowingly acquiring, receiving, or otherwise transferring any human organ for valuable consideration for use in human transplantation – included within the ban is bone marrow. According to IJ’s complaint, “[t]his constitutional challenge is about an arbitrary law that criminalizes a promising effort to save lives. Every year, tens of thousands of Americans – many of whom are just children –learn they have a deadly blood disease such as leukemia. Often, their only hope is a bone marrow transplant from a stranger, but there is a desperate shortage of unrelated marrow donors…”

According to IJ, “[t]he National Organ Transplant Act (NOTA) of 1984 treats compensation for marrow donors as though it were black-market organ sales. Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow would land everyone—doctors, nurses, donors and patients—in federal prison for up to five years.” IJ argues that this treatment of bone marrow is a violation of the equal protection clause because, unlike organs which are non-renewable, bone marrow renews itself quickly, less than a few weeks in fact. Thus, IJ claims that the law should treat bone marrow as other renewable cells, such as blood, for which compensation for donations are allowed. Such a change in legal regime would allow for many people in desperate need of donation to have better opportunity of finding the bone marrow that will save their lives – now, the question remains – what will opposing counsel, Attorney General Eric Holder, will have to say about IJ’s challenge? As of yet, no reply.

So why should we care about this case - other than the fact that thousands of human lives, including those of the children represented by IJ, are hanging in the balance? Because, like so many other legal disputes, though the case will be decided upon details of technical disputes concerning the nature of the bone marrow and the Act in question, what will ultimately be decided is whether the law will allow society to prohibit the promotion of human life in order to secure a moral code that stands in direct opposition to human progress.
It is undisputed that allowing free-market incentives into the human organ, tissue and cell industry will lead to an increase in supply of these much needed life-saving materials. Yet, many people, including Judges, are reluctant to allow the market and into this area of human life because they believe that doing so will degrade the value of human life. Yet, nothing could be further from the truth, as the true devaluer of human life is the person willing to allow human beings to die so that others may maintain some vague and unsupported definition of human sanctity.

What drives people to hold such outlandish positions is their strong distaste for private property and self-interested motivations generally - see the definition of the word "selfish".

They believe such notions to be an evil, tolerated for nothing other than the utilitarian purpose it serves. They hold that to link the evil force of private property with the human body degrades the human soul itself, and might possibly jeopardize all of humanity in the process. One can only imagine what goes on in their minds – perhaps they see a future in which human beings are farmed and their bodies harvest – think the ISLAND, but without the beauty. But private property and free-markets would never allow for such a fate, for private property presupposes that every human being has a right to life. How could one believe that by creating a more thorough and fully integrated right to life society will be dehumanized?

The truth is that in allowing human beings to voluntarily cooperate, i.e. in allowing each and every human being to live by the dictates of his own conscience, all human beings' lives are enhanced. Thus, so long as the state remains within its proper sphere, only acting as the protector of individual rights, then the dehumanization that many fear to be linked to the mrket...will, to the contrary, never occur.

Unfortunately, the benefits of private property are rarely sufficient to persuade the anti-capitalist of the value of a free-market solution. This position itself should tell you something about the anti-property breed. But if it doesn’t, then allow me to spell it out for you…though they speak of common property, of human sanctity, of the common good, the reality is that they have no interest in bettering Man’s state. Rather, their wish is nothing other than to maintain the social order that they believe is proper. Theirs is a society of rulers and ruled. And because of their position, because of their belief that others can be treated as means to the end that is their "Great Society" they are willing to do just about anything to bring it about, including allowing human beings to die where their continued living requires a legal recognition of the awe-inspiring good that the free-market unleashes.

Thus, though the legal dispute soon to be litigated in Flynn v. Holder will likely focus on issues possibly mundane to the typical political follow, the philosophical and political implications of this decision and others like it, will reach far beyond any political quibble of the present moment - for a political issue is fast forgotten, but a legal decision remains with us forever.

Such is the nature of our legal system. Because of this I will be following this case with a keen eye, keeping those who are interested in its development updated as to who it is that is winning, why it is that they are doing so, and what it means to both the parties involved and we, the American citizenry.

These issues may become complex, but I assure you that understanding them will lead to a deeper appreciation of the Constitution, the law, and the American Republic itself.

So, until next time, this is John Callan reminding you to make the most of your moment.