## Facts

- Parents of children needing (or likely to need) hematopoietic stem-cell transplants, a transplant physician, and a nonprofit sought to increase donor matches by offering financial incentives to donors.
- The nonprofit proposed a $3,000 donor award structured as scholarships, housing allowances, or charitable gifts selected by donors.
- The program targeted donors providing hematopoietic stem cells through peripheral blood stem cell (PBSC) apheresis, a procedure that draws blood, separates stem cells, and returns remaining blood components to the donor.
- When Congress enacted the National Organ Transplant Act (NOTA), “bone marrow” donation commonly referred to an invasive aspiration procedure requiring needles into hipbones, anesthesia, and hospitalization.
- NOTA makes it a federal crime to transfer any “human organ” for valuable consideration for transplantation and defines “human organ” to include “bone marrow” and “any subpart thereof.”
- Plaintiffs alleged the government interpreted NOTA to criminalize compensating PBSC apheresis donors as a transfer of bone marrow (or a subpart of it), preventing implementation of the incentive program.
- The district court dismissed the complaint under Rule 12(b)(6), rejecting constitutional claims and construing NOTA to cover compensated PBSC apheresis donations.

## Issues

1. Whether NOTA’s ban on transferring a “human organ” for valuable consideration, including “bone marrow” and “any subpart thereof,” applies to hematopoietic stem cells collected by PBSC apheresis.
2. Whether, if NOTA were construed to ban compensation for PBSC apheresis donations, that distinction (compensation allowed for blood, sperm, and eggs but not for bone marrow-related materials) would violate equal protection under the Fifth Amendment.
3. Whether NOTA’s ban on compensation for traditional bone marrow aspiration survives rational-basis review under equal protection.

## Decision

- The Ninth Circuit affirmed dismissal of the equal-protection challenge as applied to traditional bone marrow aspiration.
- The court held Congress could rationally ban compensation for aspiration-method bone marrow donation given the procedure’s invasiveness and risks and Congress’s interest in preventing commodification and exploitation in organ markets.
- The Ninth Circuit reversed dismissal of the statutory claim concerning PBSC apheresis, holding that compensation for PBSC-derived hematopoietic stem cells is not prohibited by NOTA.
- The court concluded that, as collected through PBSC apheresis, the transferred material is a component of blood rather than “bone marrow” or a “subpart” of bone marrow within NOTA’s meaning at enactment.
- The case was remanded for proceedings consistent with the declaration that NOTA does not criminalize compensation for PBSC apheresis donations.
- Because PBSC apheresis compensation was held outside NOTA’s reach, the court declined to decide the constitutional question for that method.

## Legal Principles

- Statutory terms are interpreted according to their ordinary meaning at the time of enactment, especially where Congress used specific terms rather than delegating definitions to agency expansion.
- For NOTA’s organ-sale prohibition, the relevant inquiry is the substance actually transferred in the challenged transaction, not whether similar cells may also exist elsewhere in the body.
- “Bone marrow” in NOTA, as enacted, refers to the soft marrow within bone cavities associated with aspiration methods, not stem cells circulating in peripheral blood and collected via apheresis.
- Equal-protection challenges to federal statutes under the Fifth Amendment generally receive rational-basis review absent a suspect classification or fundamental right; Congress may draw imperfect lines if a rational basis exists.
- Courts may avoid constitutional rulings when a case can be resolved on statutory grounds.

## Conclusion

The Ninth Circuit held that NOTA rationally prohibits compensation for bone marrow obtained through traditional aspiration, but that NOTA does not criminalize compensating donors for hematopoietic stem cells collected through PBSC apheresis because that procedure transfers a component of blood rather than “bone marrow” or a “subpart thereof” under the statute’s enacted meaning.


Flynn v. Holder, 684 F.3d 852 (9th Cir. 2012)