I will comment more on this case later, but wanted to at least get the allegations up on the blog. While a novel theory, for reasons I will explain when time permits, I do not see this case ultimately being successful. Here are the allegations:
Three groups conspired to fix prices for human egg donors and “reap anti-competitive profits for themselves,” a donor says in a federal antitrust class action. The woman says that though egg donation is “far more painful and risky” than sperm donation, women are paid the same hourly rate as sperm donors, and “a price paid for donor services that does not account for those differences must be artificially low.”
Lindsay Kamakahi sued the American Society for Reproductive Medicine, the Society for Assisted Reproductive Technology, and the Pacific Fertility Center. The American Society for Reproductive Medicine (ASRM) describes itself as an organization “devoted to advancing knowledge and expertise in reproductive medicine.” The Society for Assisted Reproductive Technology is an affiliate of ASRM that represents more than 85 percent of the assisted-reproduction clinics in the United States and sets “guidelines and standards for reproductive professionals – among them, an illegal maximum payment for egg donors, according to the complaint.
When members, fertility clinics and assisted-reproduction agencies fail to abide by the ASRM and SART’s standards, they are removed from the SART-approved donor programs list, according to the complaint. ASRM published its maximum price rules for donor services in 2000, mandating “prices at sums of $5,000 or more require justification and sums above $10,000 go beyond what is appropriate,” the complaint states. The prices have not been raised since 2000, Kamakahi says.
The complaint states: “The rates set forth in the maximum price rules were originally keyed to the market rates for sperm donation, i.e., by taking the average price a sperm donor receives for a donation, computing an hourly rate based on that price, and then multiplying that hourly rate by the number of hours it takes for an egg donor to donate eggs. That number was then purportedly slightly adjusted upwards to account for the additional inconveniences of donor services.
“However, one commentator noted that egg donors receive an ‘average hourly compensation of between roughly $75 and $93 for time spent in a medical setting, about the same as hourly sperm donor rates.” Kamakahi adds: “Since the process of donating eggs is far more painful and risky than is the process for donating sperm, a price paid for donor services that does not account for those differences must be artificially low.”
Donating a human egg requires disclosing medical and psychological history, a physical examination, and a 3-week process of “painful hormone injections, aimed at stimulating egg production.” Throughout the process, egg donors undergo “frequent blood tests and ultrasound examinations.” The egg donation itself requires surgery that “may require several days of restricted activity to recover.”
Human egg donation is an $80-million-a-year market that is regulated only in Louisiana and Indiana, according to the complaint: “The donor services marker is largely self-regulated. There are no federal laws or regulations governing economic compensation for donor services. Plaintiff is aware of only two states with laws governing compensation for donor services: Louisiana, which bars such payments, and Indiana, which provides for a statutory cap on such payments.” Kamakahi seeks class certification, an injunction and class damages for antitrust violations.