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Egg Donation

A Different Take On The Class Action Lawsuit Brought By An Egg Donor Alleging Price Fixing

Darlene Pinkerton, owner of A Perfect Match, shares her views on the recent lawsuit against, among others, ASRM alleging price fixing in establishing compensation limits to egg donors:

The compensation issue with ASRM has not been about making sure the donor isn’t placing herself in harm’s way. We can put many safeguards in place to make sure that she fully understands what she is doing so she is making a truly informed decision and not being coerced to do something she doesn’t really want to do. We can make sure they have psychological evaluations and counseling (BTW: not even required by ASRM) and we can make sure they have legal counsel to go over the consent forms and to make sure their rights are protected (again not required by ASRM)… If this is truly about protection of the donor, then why isn’t ASRM insisting on this for every single donor? Why isn’t ASRM actually protecting the donor regardless of compensation she is receiving? Every donor should have counsel, because a donor who works at a fast food place may be more swayed by $5000 than the donor who is asking for more than $10,000 but is a medical doctor or attorney, like some of my donors are. If they don’t evaluate each donor and allow her legal counsel how can they possibly set a dollar number and say that it is unethical? They can’t, which is why I think the dollar amount is far more self-serving.

There are two things I have seen at play:

1. IVF centers can control their competition by setting a compensation amount.

2. ASRM/SART want to be able to say they are able to self-regulate and don’t need any government interference.

I believe there is some price fixing going on in order to protect the IVF centers’ own donor pools so they can be competitive with agencies. From the very beginning of when I first started advertising these ‘in-house’ programs have said that allowing agencies to offer higher compensation dried up their own donor pool. Once they raised the $$ amount they paid donors in order to be competitive with agencies, then their donor pool increased. Viola! Magic! I have no problem with them being competitive, but I do have a problem with IVF centers setting prices and protocols that eliminate an intended parent’s ability to work with a specific agency or donor. If everyone is counseled appropriately, then why would ASRM or the IVF center care? The truth is that the IVF centers that don’t have “in house” donor programs don’t care about compensation paid to donors…they don’t care and they don’t ask…that is the reality. So let’s be real… the majority of physicians making these rules have their own in-house donor programs and stand to lose $$ if they can’t be financially competitive with compensation. The ones that don’t have their own donor programs could care less how much a donor is paid as long as everyone agrees and has counsel. Coincidence? I think not.

Self-regulation: Let’s start with how IVF centers “in house’ programs get away with paying a donor more than $5000, which according to ASRM guidelines requires “justification.” Routinely the IVF centers throughout the country are giving their in-house donors $8-10,000 for local donations, but ASRM and SART don’t make them justify it…they just turn a blind eye. When I’ve questioned the centers about the level of payment they pay and how they justify it, they justified it by saying it is more expensive to live in NY, Boston, San Francisco…really? The guidelines specifically say that you can’t pay a donor a higher amount for ethnicity, SATs, previous donor, etc….” Compensation should not vary according to the planned use of the oocytes, the number or quality of oocytes retrieved, the number or outcome of prior donation cycles, or the donor’s ethnic or other personal characteristics.” but we can justify paying them more because of where they personally live?

If the ASRM limits are really based on time spent, and risks taken, then where a person lives should have no impact on the amount of money they receive and these IVF centers should not be allowed to pay more than the $5000 ASRM says is justified. But ASRM does nothing about that…nothing! Bottom line is that ASRM/SART does not make anyone “justify” why they pay a donor over $5000, even though that is what it states in the guidelines, and they continually turn their backs on what is going on with compensation amounts paid to donors…unless someone dares to go over their “guideline” compensation.

And, why is $10,000 the magic number if they are actually basing it on time and effort? If they are truly concerned with time spent and risks involved then they should not be using the donation of a sperm donor as their rational for a compensation amount. ASRM guidelines do not take into consideration that a sperm donor gets to go in a little room and watch porn for his donation, while an egg donor is injecting her body with medications for weeks, attending numerous doctor appointments, having surgery, and then having a recovery time that can take up to 2 weeks before their body gets back to normal…in an ideal donation…they receive nothing more if they have complications, hyper-stimulate, require hospitalization, etc.

Parenthetically, I once represented a client that paid $95,000 to their egg donor — and never achieved a pregnancy. So while I believe the ASRM guidelines are somewhat arbitrary and restrictive, there needs to be a standard of reasonableness involved when arriving at the compensation being offered to egg donors. Allowing the free market to establish what a donor should receive will not only exclude a significant number of potential parents from being able to afford an already expenseive process, but likely lead to the kind of draconian legislation in place around the world which has left infertile couples remaining on a waiting list for years until an altruistic egg donor is willing to help them.


2 comments for “A Different Take On The Class Action Lawsuit Brought By An Egg Donor Alleging Price Fixing”

  • Dear Andy:
    Great Blog. The only problem is that you attribute Darlene Pinkerton’s quote to me. Those are her words/views in the body of your blog – not mine. Please give her the credit – not me. I would appreciate the correction.

    • Thanks for the head’s up Pam. I have adjusted the entry to give the proper attribution to Darlene.

      Hope the book tour is going strong!

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