Professor Julie Shapiro continues to focus on the issue of egg donation. I recommend reading her entire series of posts on this topic. From her most recent entry:
But it seems to me that once you cross the line and are paying egg providers, it doesn’t matter that much how you structure the payments. The idea that you aren’t really commodifying eggs, because you aren’t actually buying the eggs themselves or because you are paying for them in batches seems fanciful, right up there with other doctrines that depend on legal fictions like constructive notice. Perhaps I’m overly cynical, but does anyone actually accept this distinction as meaningful?
I have already replied to Professor Shapiro as I firmly believe there is a meaningful distinction. In my reply, I wrote,
With respect to your question, I do believe there is a significant and meaningful distinction between compensating an egg donor for her pain, suffering and assumption of the risk and the actual purchase of her eggs. In every egg donation agreement I have ever drafted, the donor receives her full fee regardless of whether or not a single follicle is aspirated. The rationale is that she is being compensated for undergoing the procedure, not for the actual retrieval of any eggs. Hence the concern about commodification is largely eliminated.
Admittedly it is uncommon for a physician to actually proceed with an aspiration if an ultrasound reveals too few mature follicles. Nevertheless, those situations exist and the donor receives her entire fee much to the disappointment of her Recipient(s). Similarly, if the donor produces 40 eggs, none of which are able to be fertilized, she also receives her full fee.
It is also important to note the distinction between proceeding with a fresh cycle and obtaining unfertilized frozen eggs. When a Recipient Parent purchases cryopreserved eggs from an egg bank, they typically pay per egg (upwards of $3,000.00). Notably, however, that sum is not paid to the donor, but rather the facility that is banking the eggs. Even in these situations, the egg donor’s fee is the same (hopefully within ASRM guidelines). So whether she produces 3 or 30 eggs that are ultimately frozen, her compensation remains the same — because she is only being paid for the pain, suffering, inconvenience, lost wages and risk that is associated with the donor cycle.
Professor Shapiro also writes:
Third is the unusual nature of consent and the doctor/patient relationship in these cases. I keep deferring this to another time and will do so yet again. But notice that when an egg provider goes to a doctor she is not receiving any sort of treatment that is beneficial to her (apart from being remunerative.) That’s an interesting thing to ponder.
I agree that this is an issue that requires additional consideration. However, I do have a minor quibble as there can be non-remunerative benefits to the egg donor. Over the past 16 years, I have come across many situations where first-time egg donors have been diagnosed with previously unknown medical conditions as a result of the screening process. Ironically enough, it was just this week that a 23 year old, single egg donor selected by one of my clients learned that she had abnormally high FSH levels. Had this young lady not offered to serve as an egg donor, this condition may not have been diagnosed until it was too late. As a result of this early diagnosis, the egg donor is now speaking to her physician about how she can preserve her own fertility. For many donors who have not yet begun to have children of their own, proceeding with an egg donor cycle can have the unintended benefit of identifying medical issues of their own.
Similarly, before an egg donor can proceed with an egg donor cycle, she will have to undergo psychological screening. In addition to the MMPI to identify personality structure and psychopathology, the donor will have to meet in-person with a licensed mental health professional. It is not unusual for the psychologist (or other professional) to identify pathologies or other emotional issues which would subsequently be shared with the donor and, perhaps, lead to individualized treatment. Again, had the egg donor not elected to proceed with a donation cycle, this information may have remained unknown to the donor.
These are admittedly small nits on my part. Professor Shapiro’s focus on these issues is important and I am looking forward to her subsequent posts.