Can the Government Ban Organ Sale? Recent Court Challenges and the Future of US Law on Selling Human Organs and Other Tissue

On December 1, 2011, in Flynn v. Holder, a panel of the US Court of Appeals for the Ninth Circuit upheld the National Organ Transplant Act of 1984 (NOTA) from a constitutional challenge, but interpreted the act such that its prohibition on sale did not encompass “peripheral blood stem cells” obtained through apheresis. Rehearing of the case was denied on March 27, 2012. The Obama administration must now decide whether to pursue its challenge in the US Supreme Court. This article explains the litigation, its significance and uses it as a backdrop against which to understand the history and future trajectory of the laws governing selling organs and other human tissue. This article uses the recent decision of the US Court of Appeals for the Ninth Circuit in Flynn v. Holder, which upholds the National Organ Transplant Act of 1984 from a constitutional challenge but finds it inapplicable to “peripheral blood stem cells” obtained through apheresis, to better understand the history and future trajectory of the laws governing the selling of human organs and tissues.