Cutting the Cord to Private Cord Blood Banking: Encouraging Compensation for Public Cord Blood Donations after Flynn v. Holder

Abstract

This Article argues that the Ninth Circuit's recent ruling in Flynn v. Holder, which allowed compensation for peripheral blood stem cells ("PBSCs") obtained via apheresis] under the National Organ Transplant Act ("NOTA'), also opens up the possibility for compensation for umbilical cord blood ("cord blood"). The holding in Flynn applies to cord blood for several reasons. First, Flynn held that bone marrow was subject to NOTA's prohibition on compensation because bone marrow was explicitly mentioned in the statute. In contrast, no mention of cord blood appears in NOTA or its applicable regulations. Also, the procedure to utilize cord blood was not in practice at the time of NOTA passage and could therefore not have been contemplated by Congress. Additionally, similar to PBSCs, when Congress revisited NOTA and passed later amendments adding fetal organs to the prohibition on payment, it chose not to modify the statute to explicitly include cord blood. Finally, there is a longstanding view that blood should not be covered by NOTA's prohibitions and this should apply equally to cord blood. Until recently, bone marrow transplants and PBSC transplants were the only two options for individuals suffering from diseases that damaged bone marrow, such as leukemia and lymphoma. However, advances in technology have allowed cord blood transplants to become a viable alternative to marrow and PBSC transplants for patients who have been unsuccessful in finding a PBSC or bone marrow match. This Article contends that rather than focusing only on increasing the numbers of bone marrow and PBSC donors, it is prudent to focus on increasing cord blood donations as a method of overcoming this problem. The lack of minority or mixed-race bone marrow, PBSC, and cord blood donors in the United States is a significant public health problem that has not been addressed adequately. Cord blood is taken from the umbilical cord of a newborn after the cord has been detached from the baby. Cord blood can be used to treat more than seventy diseases. Expectant mothers are not well-informed about the option to donate cord blood. Often, a pregnant woman's sole source of information about cord blood is from marketing materials provided by private cord blood banks. These private banks offer to store a baby's cord blood for a hefty yearly fee, selling this service as a sort of life insurance policy that could be cashed in should the child get sick in the future. The American Academy of Pediatrics and the American College of Obstetrics and Gynecology advise against private cord blood banking because stored cord blood is of very little value to the individual from whom it was retrieved. In contrast, cord blood that is donated to a public bank can be very useful to individuals requiring a bone marrow transplant. Additionally, recipients of cord blood transplants are able to withstand an imperfect match compared to recipients of bone marrow or PBSC transplants. This is significant because it is difficult to find exact matches for racial minorities and mixed race individuals. Currently, almost 97 percent of cord blood is discarded as medical waste. In addition to compensation, this Article also suggests other methods of making public cord blood donation a more common practice.