Flynn v. Holder

United States Court of Appeals for the Ninth Circuit · 2012 · Property

684 F.3d 852 (9th Cir. 2012)

Updated July 23, 2026

Propertybone marrowperipheral blood stem cell apheresisNational Organ Transplant Actvaluable considerationhuman organsubpart thereofblood donations

Facts

Plaintiffs included patients and parents seeking more matched donors, a physician, and MoreMarrowDonors.org, a nonprofit that wanted to offer $3,000 scholarships, housing allowances, or charitable gifts to certain bone marrow donors. The complaint focused on peripheral blood stem cell apheresis, a newer procedure in which donors receive medication and then blood is drawn from a vein, filtered to extract hematopoietic stem cells, and the remaining blood is returned. Unlike older aspiration, apheresis does not remove the soft, fatty marrow from bone cavities and allegedly poses no significant risk with quick regeneration of the donated cells. MoreMarrowDonors.org alleged it could not launch its pilot program because NOTA criminalizes compensation for transfer of a listed human organ, including bone marrow.

Issue

Does the National Organ Transplant Act prohibit compensation for hematopoietic stem cells obtained through peripheral blood stem cell apheresis, and if it does, would that prohibition violate equal protection? Also, does the statute validly prohibit compensation for traditional bone marrow donations obtained by aspiration?

Rule

Under the National Organ Transplant Act, "bone marrow" means the soft, fatty substance in bone cavities, not blood or substances circulating in blood vessels. Material taken from blood through peripheral blood stem cell apheresis is a subpart of blood, not a subpart of bone marrow, so the statute does not prohibit compensation for such donations. By contrast, compensation for traditional marrow extracted by aspiration is prohibited, and that prohibition survives rational basis review.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, a nonprofit called Desert Match Network offers $2,500 rent vouchers to registered donors who undergo a procedure in which physicians insert needles into the hip bone and withdraw soft tissue from inside the bone cavity. The donors agree to the payments only if their tissue is used in transplantation.

If a donor challenges a federal ban on transfers of listed human organs for valuable consideration, what is the strongest conclusion?

Explanation. The majority held that when soft, fatty marrow is extracted from bone cavities by aspiration, the statute's listing of bone marrow controls. The court rejected a regeneration-based limitation because the text does not exempt replenishable material and even includes organs or subparts, such as liver tissue, that can regenerate. Labeling compensation as vouchers instead of cash does not avoid 'valuable consideration.'