September 7, 2016
An open letter to Shelley Grant, MHSA, Branch Chief,
Blood Stem Cell Transplantation Program, Division of Transplantation Healthcare Systems Bureau,
Health Resources and Services Administration 5600 Fishers Lane, Room 12C–06,
Rockville, Maryland 20857
Comment on Change to the Definition of “Human Organ” Under Section 301 of the National
Organ Transplant Act of 1984. Health Resources and Services Administration, HHS. RIN 0906–AB02.
We are professional ethicists in the fields of business ethics, medical ethics, and/or normative
The Department of Health and Human Services issued a Notice of Proposed Rulemaking on
October 2, 2013. The proposed rule (hereafter: “the Rule”) would append “bone marrow” with
“and other hematopoietic stem/progenitor cells without regard to the method of their collection.”
This Rule would effectively reverse the decision in Flynn v. Holder before the U.S. District Court of Appeals for the Ninth Circuit.1 That decision holds that compensating donors of hematopoietic
stem/progenitor cells (hereafter: “hematopoietic cells”) through a procedure called apheresis
was not contrary to the National Organ Transplant Act.
We oppose the Rule. We maintain that the ethical arguments against a compensatory model for
hematopoietic cell donation through apheresis (hereafter: “the compensatory model”) fail. We
further maintain that significant ethical considerations speak in favor of the compensatory
model, and therefore against the Rule.
Below, we respond to the ethical arguments offered in favor of the Rule: that the compensatory
model would result in wrongful exploitation (§2); that the compensatory model would promote
the view that human beings, their bodies, or subparts thereof, are mere commodities (§3); and
that the compensatory model would incentivize donation for personal gain over donation from
altruistic motives (§4). Given the ethical importance of avoiding preventable death and the
strong likelihood that the compensatory model would help avoid preventable death, as well as
the ethical importance of free choice, we conclude that the Rule is unethical (§1).
- The Rule is unethical, both because it constitutes a ban on a practice that would help avoid
preventable death, and because it limits freedom of choice in the absence of ethical grounds
for such limitation.
- The Rule, if enacted, may result in a greater number of preventable deaths.
Approximately 1,000 people die each year for want of a matching donor. There is
every reason to believe that the compensatory model can reduce the number of
preventable deaths. Given the ethical importance of avoiding preventable death,
removing an incentive for provision of hematopoietic cells is unethical, barring the
presence of overriding ethical concerns.
- Strong ethical grounds are required for limitations on free choice. This requirement is
only strengthened when the choice is regarded by some as their best option. The Rule
would remove what some consider their best option. While there may be cases where
removing an option improves people’s situation, there is no reason to believe that this
is such a case, especially given the limited burdens incurred through apheresis, as
detailed in §2.1.
- As argued below, worries about wrongful exploitation (§2), worries about regarding the
human body or any subpart thereof or human labor as a commodity (§3), and the
ethical importance of altruism (§4), are not, individually or jointly, sufficient to override
either the ethical importance of avoiding preventable death or the ethical presumption
in favor of free choice.
- The Rule is intended, as we understand it, to avoid wrongful exploitation. We agree
that wrongful exploitation is a significant worry. However, a compensatory model would not
be wrongfully exploitative in this case.
- Unlike aspiration, apheresis is a non-invasive procedure. There is no significant risk to the donor. The donation is very much like a blood donation. In most cases recovery, which is generally minimal or non-debilitating, lasts one week. Additionally, unlike kidneys and other organs for which ethical concerns about wrongful exploitation arise, hematopoietic cells quickly regenerate. Donors do not permanently “lose” a part of
themselves. As the burdens here are negligible, they provide no grounds for concern about wrongful exploitation.
- Proponents of the Rule have provided no evidence that the compensation for
hematopoietic cells would be low, or that only poor or desperate people would be
willing to donate for compensation. Even middle and upper-class citizens may be
willing to donate hematopoietic cells for compensation, just as such citizens now
donate eggs or sperm for compensation. Proponents of the Rule have therefore
provided no evidence that either the level of compensation or the expected poverty or
desperation of the donating population provide grounds for concern about wrongful
- The Rule is intended, as we understand it, to avoid promotion of the view that human
beings, their bodies, subparts thereof, or human labor are appropriately viewed as
commodities.2 Insofar as anything compensated for is a commodity, it is trivially true that the
compensatory model promotes the view that hematopoietic cells are commodities. But this
is ethically irrelevant. The relevant ethical concern is that the compensatory model would
promote the view that human beings (etc.) are “mere” commodities, meriting no more ethical
regard than other mere commodities, such as cars or clothing. However, there is no
evidence that the compensatory model would promote this view.
- There is no evidence that compensation for blood and blood plasma donations, nor for
sperm and egg donations, has promoted the view that people or their blood, sperm, or
eggs are mere commodities.
- In some states, commercial surrogacy is legal. There is no evidence that this practice
has promoted the view that either women or their reproductive labor are mere
commodities in these states, as compared to those in which commercial surrogacy is
prohibited by law.
- We pay Presidents, members of the military, police officers, teachers, actors, artists,
and so on. There is no evidence that compensating them for their labor promotes the
view that they or the services they provide – protection, education, artistic expression ‐
are mere commodities.
- Proponents of the Rule have provided no evidence that the compensatory model, in
contrast with similar practices referenced above, would promote the view that donors
or their hematopoietic cells are mere commodities.
- The Rule is intended, as we understand it, to avoid incentivizing donation for monetary gain
over donation from altruistic motives. We agree that altruism is desirable, and that we need
to be careful when considering policies to preserve and promote altruistic and benevolent
motives and actions. However, we consider this argument unpersuasive.
- The compensatory model leaves open the possibility of donors’ rejecting
compensation, or the operation of a parallel non-compensatory model. Some blood
drives use compensation, others do not. Blood donors, by comparison, have the option
of donating with or without compensation.
- Compensation and altruism are not mutually exclusive. In many cases, people who are
compensated are motivated simultaneously (or even primarily) by altruistic impulses.
This is true of many teachers and members of the military. There is no reason to
believe that a compensated hematopoietic cell donor would be solely motivated by
personal financial gain.
- Compensation may be spent in an altruistic fashion. For example, compensation may
be donated to a charity or used to pay for a loved one’s education or health care. The
fact that someone is compensated does not entail that she has non-altruistic or
otherwise selfish or crass motives.
- In our view, none of the moral objections to the compensatory model stand in this case.
Furthermore, there is a strong moral presumption against standing in the way of a model
that would avoid preventable deaths. We conclude that the Rule is unethical, and should not
Jonathan Baron, University of Pennsylvania
Jason Brennan, Georgetown University
Richard Y. Chappell, University of York
Gary Chartier, La Sierra University
Mark J. Cherry, St. Edward’s University
Andrew J. Cohen, Georgia State University
Gerald B. Dworkin, University of California (Davis)
William English, Georgetown University
David Faraci, Georgetown University
Nita Farahany, Duke University
Mark Fedyk, Mount Allison University
Jessica Flanigan, University of Richmond
Chris Freiman, College of William and Mary
Keith Hankins, Chapman University
John Hasnas, Georgetown University
Stephen Hicks, Rockford University
Benjamin E. Hippen, Metrolina Nephrology Associates
Michael Huemer, University of Colorado (Boulder)
Peter M. Jaworski, Georgetown University†
Shawn Klein, Arizona State University
Adam Kolber, Brooklyn Law School
Kimberly D. Krawiec, Duke University
Daniel Layman, Davidson College
Chris MacDonald, Ryerson University
Alexei Marcoux, Creighton University
Michelle N. Meyer, Geisinger Health System
Jonathan Miles, Quincy University
Jeffrey Moriarty, Bentley University
Vida Panitch, Carleton University
David Schmidtz, University of Arizona
Peter Singer, Princeton University
Neil Sinhababu, National University of Singapore
Nicole Smith, University of Texas (Austin)
James Stacey Taylor, The College of New Jersey
Kevin Vallier, Bowling Green State University
Bas van der Vossen, University of North Carolina (Greensboro)
Justin Weinberg, University of South Carolina
Mark Wells, The College of Wooster
Matt Zwolinski, University of San Diego
1 Flynn v. Holder, 665 F.3d 1048 (9th Cir. 2011).
2 See S. Rep. No. 98-382, at 17 (1984), 1984 U.S.C.C.A.N. 3975 at 3982 (“[H]uman body parts should not be viewed as commodities”).
* The views expressed are those of the signatories and are not necessarily shared by the institutions with which they are affiliated.
† One of Peter's former students founded Hemeos, a company looking to offer compensation for hematopoietic cell donation.