FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOREEN FLYNN; AKIIM DESHAY; 

MIKE HAMEL; MARK HACHEY;

KUMUD MAJUMDER;

MOREMARROWDONORS.ORG; JOHN No. 10-55643

WAGNER, M.D., D.C. No.

Plaintiffs-Appellants,  2:09-cv-07772-

v. VBF-AJW

ERIC HOLDER Jr., Attorney General OPINION

of the United States, sued in his

Official Capacity,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted

February 15, 2011—Pasadena, California

Filed December 1, 2011

Before: Alfred T. Goodwin, Andrew J. Kleinfeld, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Kleinfeld

20553
COUNSEL

Jeff Rowes, Institute for Justice, Arlington, Virginia, for the

appellants.

Helen L. Gilbert, U.S. Department of Justice, Washington,

D.C., for the appellee.

Aneal R. Ganta, Gibson, Dunn & Crutcher LLP, Irvine, California, for the amici curiae.

OPINION

KLEINFELD, Senior Circuit Judge:

This is a challenge to a criminal statute prohibiting compensation for “bone marrow” donations.1

I. Facts.

The district court dismissed the complaint for failure to

state a claim upon which relief could be granted.2 We take the

1

42 U.S.C. § 274e. 

2Fed. R. Civ. P. 12(b)(6). 

20556 FLYNN v. HOLDER
facts from the allegations in the complaint to determine

whether, if proved, they would state an actionable claim.3

The complaint challenges the constitutionality of the ban on

compensation for human organs in the National Organ Transplant Act, as applied to bone marrow transplants.4

 Plaintiffs

seek declaratory and injunctive relief to allow harvesting of

“hematopoietic stem cells.” The complaint is not crystal clear

on whether plaintiffs claim that compensation for all bone

marrow transplantation is constitutionally protected, but the

focus of the arguments is on cells extracted by “peripheral

blood stem cell apheresis.” This is a relatively new method of

bone marrow transplant that avoids the need to invade the

bone for marrow.

Some plaintiffs are parents of sick children who have diseases such as leukemia and a rare type of anemia, which can

be fatal without bone marrow transplants. Another plaintiff is

a physician and medical school professor, and an expert in

bone marrow transplantation. He says that at least one out of

five of his patients dies because no matching bone marrow

donor can be found, and many others have complications

when scarcity of matching donors compels him to use imperfectly matched donors. One plaintiff is a parent of mixed race

children, for whom sufficiently matched donors are especially

scarce, because mixed race persons typically have the rarest

marrow cell types. One plaintiff is an African-American man

suffering from leukemia who received a bone marrow transplant from his sister. She was an imperfect match and, though

the transplant saved his life, he continues to suffer from lifethreatening and disabling complications on account of the

slight genetic mismatch. 

3Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2

(9th Cir. 2008). 

4

42 U.S.C. § 274e. 

FLYNN v. HOLDER 20557
Another plaintiff is a California nonprofit corporation that

seeks to operate a program incentivizing bone marrow donations. The corporation proposes to offer $3,000 awards in the

form of scholarships, housing allowances, or gifts to charities

selected by donors, initially to minority and mixed race

donors of bone marrow cells, who are likely to have the rarest

marrow cell type. The corporation, MoreMarrowDonors.org,

alleges that it cannot launch this program because the

National Organ Transplant Act criminalizes payment of compensation for organs, and classifies bone marrow as an organ.5

We generally use the word “marrow” to refer to the soft,

fatty material in the central cavities of big bones, what some

people suck out of beef bones. Bone marrow is the body’s

blood manufacturing factory. Bone marrow transplants enable

sick patients, whose own blood cells need to be killed to save

their lives, to produce new blood cells. For example, patients

with leukemia, which is cancer of the blood or bone marrow,

may need chemotherapy or radiation to kill the cancer cells in

their blood. The treatments kill the white blood cells essential

to their immune systems. The patients will die if the killed

cells are not quickly replaced with healthy cells. And they

cannot be replaced without the stem cells, which we describe

below, that can mature into white blood cells. These stem

cells can only be obtained through bone marrow transplants.

Until about twenty years ago, bone marrow was extracted

from donors’ bones by “aspiration.” Long needles, thick

enough to suck out the soft, fatty marrow, were inserted into

the cavities of the anesthetized donor’s hip bones. These are

large bones with big central cavities full of marrow. Aspiration is a painful, unpleasant procedure for the donor. It

requires hospitalization and general or local anesthesia, and

involves commensurate risks.

5

Id.

20558 FLYNN v. HOLDER
The complaint explains that a new technology has superseded this technique during the last twenty years, after enactment of the National Organ Transplant Act. With this new

technique, now used for at least two-thirds of bone marrow

transplants, none of the soft, fatty marrow is actually donated.

Patients who need bone marrow transplants do not need

everything that the soft, fatty substance from bone cavities

contains, just some of the marrow’s “hematopoietic stem

cells.” These stem cells are seeds from which white blood

cells, red blood cells, and platelets grow. 

These are not the embryonic stem cells often the subject of

controversy. Those stem cells, taken from human embryos,

are “pluripotent,” that is, they can turn into any kind of cell

— brain, blood, retina, toenail, whatever.6 The stem cells at

issue in this case are “hematopoietic stem cells.” “Hema”

refers to blood, and “poietic” means “pertaining to production.”

7

Hematopoietic stem cells turn into blood cells and nothing

else. Humans and other large mammals produce these blood

stem cells constantly in vast numbers, because our blood cells

die within a few months and need continual replacement.8 The

dead blood cells are flushed out in the spleen, the body’s garbage disposal for used-up blood cells,9

 and new ones are made

in the bone marrow, as long as we live. 

Most blood stem cells stay in the bone marrow cavity and

grow into mature blood cells there, before passing into the

blood vessels. But some blood stem cells flow into and circulate in the bloodstream before they mature. These are called

“peripheral” blood stem cells, “peripheral” meaning outside

the central area of the body.10 The new bone marrow donation

6Taber’s Cyclopedic Medical Dictionary 1809 (21st ed. 2009).

7

Id. at 1033, 1819. 

8

See id. at 284. 

9

See id. at 2177. 

10Id. at 1752. 

FLYNN v. HOLDER 20559
technique, developed during the past twenty years, is called

“peripheral blood stem cell apheresis.” “Apheresis” means the

removal or separation of something.11 This procedure begins

with five days of injections of a medication called a “granulocyte colony-stimulating factor” into the donor’s blood. The

medication accelerates blood stem cell production in the marrow, so that more stem cells go into the bloodstream. Then,

with no need for sedatives or anesthesia, a needle is inserted

into the donor’s vein. Blood is withdrawn from the vein and

filtered through an apheresis machine to extract the blood

stem cells. The remaining components of the blood are

returned to the donor’s vein. The blood stem cells extracted

in the apheresis method are replaced by the donor’s bone marrow in three to six weeks. Complications for the donor are

exceedingly rare.

The main difference between an ordinary blood donation

and apheresis is that instead of just filling up a plastic bag

with whole blood, the donor sits for some hours in a recliner

while the blood passes through the apheresis machine. This

same apheresis technique is sometimes used for purposes

other than bone marrow donations, such as when the machine

is set up to collect plasma or platelets, rather than stem cells,

from a donor’s blood. When it is used for these other purposes, the identical technique is called a “blood donation” or

“blood plasma donation.” When used to separate out and collect hematopoietic stem cells from the donor’s bloodstream,

apheresis is called “peripheral blood stem cell apheresis” or

a “bone marrow donation.”

Though the new process makes bone marrow donations

much like ordinary blood donations, the matching problem

remains. Deep genetic compatibility is critical in bone marrow transplants, because our bodies are xenophobic: white

blood cells produced from a donor’s imperfectly matched

blood stem cells treat the recipient patient’s body as foreign,

11Id. at 161. 

20560 FLYNN v. HOLDER
attacking it. This is graft-versus-host disease, which can be

fatal or can result in lifelong medical problems for the transplant recipient. All donations from another person, except for

one’s identical twin, produce at least some graft-versus-host

disease in the recipient, but the closer the genetic match, the

less disease. Matching is easy in ordinary blood transfusions,

because there are only four basic blood types. But there are

millions of marrow cell types, so good matches are hard to

find. The more diverse the patient’s genetic heritage, the rarer

the match. For example, African-Americans have especially

great difficulty finding a compatible unrelated donor, as they

tend to have a mix of African, Caucasian, and NativeAmerican genes, and fewer potential donors are registered in

the national civilian registry. 

The establishment of this registry, the National Marrow

Donor Program, which is funded by the federal government

to assist in finding matches, was an important part of the statute at issue here.12 But even with this registry, good matches

often cannot be found. And even when a good match is found

in the registry, tracking down the potential donor from what

may be an outdated address may be impossible to accomplish

in time to save the patient’s life—assuming the potential

donor is willing to go through with the process when found.

The plaintiff nonprofit proposes to mitigate this matching

problem by using a financial incentive. The idea is that the

financial incentive will induce more potential donors to sign

up, stay in touch so that they can be located when necessary,

and go through with the donations. The nonprofit plans to

focus its attention initially on minority and mixed race donors,

because their marrow cell types are rarer. The financial incentives would be $3,000 in scholarships, housing allowances, or

gifts to charities of the donor’s choice, which the nonprofit

12See 42 U.S.C. § 274k. 

FLYNN v. HOLDER 20561
acknowledges would be “valuable consideration” under the

statutory prohibition.13

Plaintiffs argue that the National Organ Transplant Act, as

applied to MoreMarrowDonor.org’s planned pilot program,

violates the Equal Protection Clause. They claim that blood

stem cell harvesting is not materially different from blood,

sperm, and egg harvesting, which are not included under the

statutory or regulatory definitions of “human organ.”

14 Like

donors of blood and sperm, a bone marrow donor undergoing

apheresis suffers no permanent harm, experiences no significant risk, and quickly regenerates what is donated. Plaintiffs

also argue that any rational basis that Congress had when it

passed the statute no longer exists with respect to the pilot

program, because of the subsequent development of the

apheresis method. Plaintiffs seek declaratory and injunctive

relief so that MoreMarrowDonors.org can proceed with the

initiative.

II. Analysis.

We review a 12(b)(6) dismissal de novo.15

A. The arguments.

The core of plaintiffs’ argument is that there is no rational

basis for allowing compensation for blood, sperm, and egg

donations, while disallowing compensation for bone marrow

donations, because bone marrow donations can now be

accomplished through apheresis without removing marrow,

and the donor’s body quickly regenerates the donated stem

cells. Since the distinction, they argue, is without a rational

1342 U.S.C. § 274e(a). 

14See 42 U.S.C. § 274e(c)(1); 42 C.F.R. § 121.13 (2010). 

15 Fed. R. Civ. P. 12(b)(6). Barker v. Riverside Cnty. Office of Educ.,

584 F.3d 821, 824 (9th Cir. 2009). 

20562 FLYNN v. HOLDER
basis, it violates the Equal Protection Clause, despite highly

deferential “rational basis” review.16

[1] The Attorney General responds that the statute plainly

classifies “bone marrow” as an organ for which compensation

is prohibited, and that the congressional determination is

indeed rational. The statute makes it a felony “to knowingly

acquire, receive, or otherwise transfer any human organ for

valuable consideration for use in human transplantation.”

17

And it defines the term “human organ” to include “bone marrow.”18 Ergo, the statute expressly prohibits compensating

bone marrow donors. According to the government’s brief,

Congress took the view that “human body parts should not be

viewed as commodities,”

19 and had several policy reasons for

disallowing compensation to donors, which suffice to serve as

a rational basis for the prohibition. 

[2] As for plaintiffs’ argument that there is no rational

basis for a distinction between peripheral blood stem cell

apheresis and blood donations, the government argues that

because it is much harder to find a match for patients who

need bone marrow transplants than for patients who need

blood transfusions, exploitative market forces could be triggered if bone marrow could be bought. The government also

asserts that peripheral blood stem cell apheresis poses greater

health risks for the donor than blood donations do, because of

the side effects of the medicine used to increase stem cell

secretion. The government bases this factual assertion on

information taken not from the complaint, which says that

16See Kahawaiolaa v. Norton, 386 F.3d 1271, 1277-78 (9th Cir. 2004).

1742 U.S.C. § 274e(a). 

18“The term ‘human organ’ means the human (including fetal) kidney,

liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or

any subpart thereof and any other human organ (or any subpart thereof,

including that derived from a fetus) specified by the Secretary of Health

and Human Services by regulation.” Id. § 274e(c)(1). 

19Citing S. Rep. No. 98-382, at 17 (1984). 

FLYNN v. HOLDER 20563
there is no significant risk, but from a patient handout called

“Now That You Are a Match,” published by the National

Marrow Donor Program.20 Since the case was dismissed on a

12(b)(6) motion, the complaint controls.21 If material allegations of fact are mistaken, summary judgment or trial can so

establish. We do not imply that patient risk is material to what

the statute means and whether the distinctions it draws are

constitutionally permissible. There are significant risks from

egg donations,22 but the government concedes that the statute

allows them. The statute does not prohibit trials of new medicines, which often involve risks and create discomfort or

worse for participants. Other provisions of law and medical

ethics may address these concerns, but the statute before us

does not. 

B. Bone marrow transplants by aspiration.

[3] Plaintiffs address their arguments largely to the peripheral blood stem cell apheresis method of extracting hematopoietic stem cells, but their complaint appears to challenge the

prohibition on bone marrow transplants regardless of method.

They do not, in their complaint or their brief, confine their

challenge to transplants by means of apheresis. They apparently propose to give compensated donors the choice between

aspiration and apheresis. To the extent that plaintiffs challenge the constitutionality of the compensation ban on bone

marrow donation by the old aspiration method — where a

long needle is inserted into the cavity of the hip bone to

extract the soft, fatty marrow — the challenge must fail.

20National Marrow Donor Program, Now That You Are a Match: What

You Need To Know About Becoming a Donor (2006). 

21Maktab Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar, 179 F.3d

1244, 1246 (9th Cir. 1999). 

22See Kara N. Maxwell et al., The Incidence of Both Serious and Minor

Complications in Young Women Undergoing Oocyte Donation, 90 Fertility and Sterility 2031, 2165 (2008). 

20564 FLYNN v. HOLDER
[4] The statute says that the term “human organ” includes

“bone marrow.”

23 The soft, fatty stuff that the needle extracts

is bone marrow. It is irrelevant that the legislative history

indicates that Congress viewed certain types of regenerable

tissue, such as blood, as falling outside the statutory definition

of “human organ.”

24 It may be that senators themselves, their

staffs, or lobbyists for blood banks argued for an exception

for body substances that can regenerate, and persuaded committee staffers to put that reason in the legislative history. But

the statute does not say that compensation is permitted for

organs or body parts that regenerate and prohibited for those

that do not. Nor is the statute consistent with such a construction. The statute defines the liver “or any subpart thereof” as

an organ for which compensation is prohibited.25 The drafters

doubtless knew that a partial resection of a liver can yield a

donation that will save the recipient’s life, and that the

donor’s liver will grow back.26 So the statute does expressly

prohibit compensation for at least one explicitly denoted

“human organ” that will regenerate.

[5] As for whether the distinction between the organs or

other body substances for which compensation is permitted

and those for which it is prohibited has a rational basis, there

are two classes of rational basis here: policy concerns and

philosophical concerns. The policy concerns are obvious.

Some are mentioned in the legislative history, though they

2342 U.S.C. § 274e(c)(1). 

24See S. Rep. No. 98-382, at 16-17 (1984) (stating that the organ sale

prohibition was not “meant to include blood and blood derivatives, which

can be replenished and whose donation does not compromise the health

of the donor”); H.R. Rep. No. 98-1127, at 16 (1984) (Conf. Rep.) (stating

that “the term ‘human organ’ is not intended to include replenishable tissues such as blood or sperm”). 

2542 U.S.C. § 274e(c)(1). 

26Pierre-Alain Clavien et al., Strategies for Safer Liver Surgery and

Partial Liver Transplantation, 356 New Eng. J. of Med. 1493, 1545

(2007). 

FLYNN v. HOLDER 20565
need not be.27 Congress may have been concerned that if

donors could be paid, rich patients or the medical industry

might induce poor people to sell their organs, even when the

transplant would create excessive medical risk, pain, or disability for the donor. Or, looking from the other end, Congress might have been concerned that every last cent could be

extracted from sick patients needful of transplants, by wellmatched potential donors making “your money or your life”

offers.28 The existing commerce in organs extracted by force

or fraud by organ thieves29 might be stimulated by paying for

donations. Compensation to donors might also degrade the

quality of the organ supply, by inducing potential donors to

lie about their medical histories in order to make their organs

marketable.30 Plaintiffs argue that a $3,000 housing subsidy,

scholarship, or charitable donation is too small an amount to

create a risk of any of these evils, but for a lot of people that

could amount to three to six months’ rent. 

Congress may have had philosophical as well as policy reasons for prohibiting compensation. People tend to have an

instinctive revulsion at denial of bodily integrity, particularly

27“The government need not state its purposes at the time it acts. It is

sufficient that the government could have had a legitimate reason for acting as it did.” Kim v. United States, 121 F.3d 1269, 1274 (9th Cir. 1997).

28“[Bone marrow donors] are very difficult to match with recipients, . . .

[and bone marrow donations] may represent a last resort to potential recipients.” H.R. Rep. No. 98-1127, at 17 (1984) (Conf. Rep.). 

29See Sally Satel, The Market for Kidneys, Livers and Lungs, Wall St.

J., Nov. 8, 2011, at A17. 

30See National Organ Transplant Act: Hearing on H.R. 4080 Before the

Subcomm. on Health of the H. Comm. on Ways & Means, 98th Cong., 2d

Sess. 26 (1984) (statement of Rep. Waxman) (“If [people are allowed to

sell their kidneys], I believe our efforts to promote voluntary organ donations would collapse, and health risks to transplant patients would greatly

increase. Human organs should not be treated like fenders in an auto junkyard.”). See also Maurice McGregor, Pragmatic Altruism, 160 Can. Med.

Ass’n J. 5, 91 (1999) (“The need for money is a disincentive to honest disclosure, a disincentive whose force will increase with the strength of the

need.”). 

20566 FLYNN v. HOLDER
removal of flesh from a human being for use by another, and

most particularly “commodification” of such conduct,31 that

is, the sale of one’s bodily tissue.32 While there is reportedly

a large international market for the buying and selling of

human organs,33 in the United States, such a market is criminal and the commerce is generally seen as revolting. Leon

Kass examines the philosophical issue of commodification

with his observation that nonprofit hospitals, donor registries,

and physicians are permitted to make a lot of money from

organ transplants, and the only people who get nothing are

those whose organs are donated: 

[A]lthough we allow no commerce in organs, transplant surgeons and hospitals are making handsome

profits from the organ-trading business, and even the

not-for-profit transplant registries and procurement

agencies glean for their employees a middleman’s

livelihood. Why . . . should everyone be making

money from this business except the person whose

organ makes it possible? Could it be that [the] real

uneasiness [lies] with organ donation or with transplantation itself, for if not, what would be objectionable about its turning a profit?34

Kass suggests that the revulsion for commodification of

human flesh is reflected in our language:35 we call donors who

are paid for their organs “donors” rather than “sellers” or

“vendors.” To account for why most of us are revolted by the

notion of a poor person selling a kidney to feed his family,

31See S. Rep. No. 98-382, at 17 (1984) (“[H]uman body parts should not

be viewed as commodities[.]”). 

32 See Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 603 (9th Cir. 2010),

cert. denied, 131 S. Ct. 1556 (2011). 

33See Satel, supra note 29. 

34Leon R. Kass, Life, Liberty and the Defense of Dignity: The Challenge

for Bioethics 177 (2002). 

35See id. at 195. 

FLYNN v. HOLDER 20567
Kass cites the taboos we have against cannibalism, defilement

of corpses, and necrophilia.36 Kass points to the idea of “psychophysical unity, a position that regards a human being as

largely, if not wholly, self-identical with his enlivened body,”

so that, as Kant put it, to “ ‘dispose of oneself as a mere

means to some end of one’s own liking is to degrade the

humanity in one’s person.’ ”

37 In this view, “organ transplantation . . . is — once we strip away the trappings of the sterile

operating rooms and their astonishing technologies — simply

a noble form of cannibalism.”

38

[6] These reasons are in some respects vague, in some

speculative, and in some arguably misplaced. There are strong

arguments for contrary views.39 But these policy and philosophical choices are for Congress to make, not us. The distinctions made by Congress must have a rational basis, but do

not need to fit perfectly with that rational basis, and the basis

need merely be rational, not persuasive to all.40 Here, Congress made a distinction between body material that is compensable and body material that is not. The distinction has a

rational basis, so the prohibition on compensation for bone

marrow donations by the aspiration method does not violate

the Equal Protection Clause. 

36Id. at 183. 

37Id. at 181-82, 185. 

38Id. at 185. 

39See, e.g., Virginia Postrel, . . . With Functioning Kidneys For All, The

Atlantic, July 9, 2009, http://www.theatlantic.com/magazine/archive/

2009/07/with-functioning-kidneys-for-all/7587. 

40See Heller v. Doe, 509 U.S. 312, 321 (1993) (stating that “courts are

compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends . . . [and

a] classification does not fail rational-basis review because it is not made

with mathematical nicety” (internal quotation marks omitted)); Doe v.

United States, 419 F.3d 1058, 1063 (9th Cir. 2005). 

20568 FLYNN v. HOLDER
C. Bone marrow transplants by apheresis.

[7] The focus, though, of plaintiffs’ arguments is compensation for “bone marrow donations” by the peripheral blood

stem cell apheresis method. For this, we need not answer any

constitutional question, because the statute contains no prohibition. Such donations of cells drawn from blood flowing

through the veins may sometimes anachronistically be called

“bone marrow donations,” but none of the soft, fatty marrow

is donated, just cells found outside the marrow, outside the

bones, flowing through the veins.

[8] Congress could not have had an intent to address the

apheresis method when it passed the statute, because the

method did not exist at that time. We must construe the words

of the statute to see what they imply about extraction of

hematopoietic stem cells by this method. This issue has not

been addressed by any of our sister circuits.41

[9] Since payment for blood donations has long been common, the silence in the National Organ Transplant Act on

compensating blood donors is loud. “Blood” is omitted from

the list of examples of “human organs” in the statute and the

regulation. The statute says “human organ” is defined as a

human “kidney, liver, heart, lung, pancreas, bone marrow,

cornea, eye, bone, and skin or any subpart thereof and any

41We have cited the National Organ Transplant Act in other contexts.

See Newman v. Sathyavaglswaran, 287 F.3d 786, 794 (9th Cir. 2002);

Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 603 (9th Cir. 2010). Some

district courts have considered related questions in the context of insurance claims. See Nesseim v. Mail Handlers Benefit Plan, 792 F. Supp.

674, 678 (D.S.D. 1992), rev’d, 995 F.2d 804, 807 (8th Cir. 1993); Duckwitz v. Gen. Am. Life Ins. Co., 812 F. Supp. 864, 867 (N.D. Ill. 1993);

Healthcare Am. Plans, Inc. v. Bossemeyer, 953 F. Supp. 1176, 1185 (D.

Kan. 1996). No decision by any court addressing whether the National

Organ Transplant Act prohibits compensation for hematopoietic stem

cells, or anything analogous, has been cited to us, and we have found

none. 

FLYNN v. HOLDER 20569
other human organ . . . specified by the Secretary of Health

and Human Services by regulation.”

42 The regulation adds

intestines and the rest of the gastrointestinal tract to the list:

“kidney, liver, heart, lung, pancreas, bone marrow, cornea,

eye, bone, skin, and intestine, including the esophagus, stomach, small and/or large intestine, or any portion of the gastrointestinal tract.”

43 Neither the statute nor the regulation

defines “human organ” to include “blood.” The government

concedes that the common practice of compensating blood

donors is not prohibited by the statute.

The government argues that hematopoietic stem cells in the

veins should be treated as “bone marrow” because “bone marrow” is a statutory organ, and the statute prohibits compensation not only for donation of an organ, but also “any subpart

thereof.”

44 Hematopoietic stem cells are formed in the bone

marrow, and most are found there because they generally

mature into blood cells and platelets in the marrow. Therefore, the government argues, they should be viewed as “subparts” of the bone marrow, even when these stem cells are

obtained through apheresis, which is to say, from blood flowing through veins.

We reject this argument, because it proves too much, and

because it construes words to mean something different from

ordinary usage. If the government’s argument that what

comes from the marrow is a subpart of the marrow were correct, then the statute would prohibit compensating blood

donors. The red and white blood cells that flow through the

veins come from the bone marrow, just like hematopoietic

stem cells. But the government implicitly concedes that these

red and white blood cells are not “subparts” of bone marrow

under the statute, because it explicitly concedes that the statute does not prohibit compensation for blood donations. 

4242 U.S.C. § 274e(c)(1). 

4342 C.F.R. § 121.13 (2010). 

4442 U.S.C. § 274e(c)(1). 

20570 FLYNN v. HOLDER
[10] As for ordinary usage, the bloodstream consists of

plasma containing red cells, white cells, platelets, stem cells

that will mature into one of these, and other material. We call

this liquid as a whole “blood.” No one calls it “bone marrow,”

even though these cells come from the marrow. There is no

reason to think that Congress intended “bone marrow” to

mean something so different from ordinary usage. Also, the

blood contains not only blood cells and stem cells, but also

other substances that come from elsewhere in the body. For

example, the blood contains vitamin B12, which enters the

bloodstream after binding with intrinsic factor and being

absorbed from the small intestine.45 The government’s argument would treat vitamin B

12

 as a “subpart” of the intestines,

and the regulation prohibits paying donors for their intestines

or subparts thereof.46 But every blood draw contains some

vitamin B

12

, and we still call the red liquid “blood,” not

“guts.” 

Likewise, every blood draw includes some hematopoietic

stem cells. All that differentiates the blood drawn in peripheral blood stem cell apheresis from the blood drawn from a

compensated blood donor, other than the filtration process, is

the medicine given to donors in the days before the blood

draw to increase hematopoietic stem cell secretion. Once the

stem cells are in the bloodstream, they are a “subpart” of the

blood, not the bone marrow. The word “subpart” refers to the

organ from which the material is taken, not the organ in which

it was created. Taking part of the liver for a liver donation

would violate the statute because of the “subpart thereof” language. But taking something from the blood that is created in

the marrow takes only a subpart of the blood. 

[11] We construe “bone marrow” to mean the soft, fatty

substance in bone cavities, as opposed to blood, which means

the red liquid that flows through the blood vessels. The statute

45Harrison’s Principles of Internal Medicine 601-02 (16th ed. 2005). 

4642 C.F.R. § 121.13 (2010). 

FLYNN v. HOLDER 20571
does not prohibit compensation for donations of blood and the

substances in it, which include peripheral blood stem cells.

The Secretary of Health and Human Services has not exercised regulatory authority to define blood or peripheral blood

stem cells as organs. We therefore need not decide whether

prohibiting compensation for such donations would be unconstitutional.

III. Conclusion.

[12] It may be that “bone marrow transplant” is an anachronism that will soon fade away, as peripheral blood stem cell

apheresis replaces aspiration as the transplant technique,

much as “dial the phone” is fading away now that telephones

do not have dials. Or it may live on, as “brief” does, even

though “briefs” are now lengthy arguments rather than, as

they used to be, brief summaries of authorities. Either way,

when the “peripheral blood stem cell apheresis” method of

“bone marrow transplantation” is used, it is not a transfer of

a “human organ” or a “subpart thereof” as defined by the statute and regulation, so the statute does not criminalize compensating the donor.

REVERSED. The judgment is VACATED and the case

REMANDED for such additional proceedings as may be

appropriate. Costs on appeal awarded to Plaintiffs-Appellants.

20572 FLYNN v. HOLDER