Professor Julie Shapiro took a look at the donor compensation issue last year following an article in the New York Times that shed light on the burgeoning egg donation industry. In light of the class action lawsuit filed last week against ASRM and SART, Professor Shapiro shares some of her insights on the issue:
By contrast, the US has what I think can fairly be described as a vibrant market for reproductive materials. By this I mean that you can buy gametes (eggs and sperm) quite easily. But even in the largely market oriented US, there’s a queasiness about full commodification. I’ve commented on this before. In particular, the ASRM (that’s the American Society for Reproductive Medicine, which is the most important professional organization in the field) has guidelines that suggest maximum compensation for those providing eggs. (This is the topic of the earlier post I linked to.)
Now if there’s a market for eggs and sperm (and it certainly looks like there is in the US) then it seems that setting a maximum price like that might prevent the proper operation of that market. And now, indeed, there’s an anti-trust suit that asserts just that. Someone has brought a class action anti-trust suit against the ASRM and some other defendants. (You can read the actual complaint here.)
My knowledge of anti-trust law is far from perfect, but I think this is actually a claim of monopsony. The idea is that a powerful buyer uses its power to the detrment of sellers. (You can see this is something like the inverse of ordinary monopoly claims, where a powerful seller extracts concessions/prices from buyers.) Here the ASRM and the other defendants are the buyers and the plaintiff/sellers are women who are providing their eggs. But for the actions of the ASRM the market would function to determine the prices the women selling their eggs would receive.
I realize the ASRM offers altruistic justifications for the price cap. This is, however, exactly what I wrote about before and I simply find them unpersuasive. Paying women less does not make the transactions less degrading or problematic. It only makes the less remunerative for the women involved.
Does this ultimately benefit the ASRM? I don’t know if it actually does. (I also do not know if it is necessary to establish that it does in order to win the anti-trust lawsuit.) It at least keeps the cost of one component of ART (eggs) artificially low. That might make ART more affordable to people (which might increase its use, which would benefit ART providers) or it might mean ART providers get a larger profit margin.
In any event, it will be worth watching.
I agree with Professor Shapiro that this will be a fascinating case to monitor. For a number of legal reasons (both substantive and procedural), I do not expect the class plaintiffs to prevail and meet their burden.
It should also be pointed out that notwithstanding the ASRM & SART guidelines, donor agencies routinely negotiate compensation for their donors in excess of the $10,000 cap. In fact, a number of agencies have elected not to be members of ASRM & SART for just this reason. While a number of medical facilities insist that any agency affirm its compliance with the SART compensation guidelines, most do not. So it will be an interesting burden for the class representatives to prove that not only were the compensation guidelines not reasonable, but that they would have received in excess of $10,000 (which would be their actual damages) and were left no choice but to accept a lower amount than what the free market would have offered. It is important to note that egg donors are not contractually tied to an agency like an actor may be to their talent agent. Egg Donors are free agents and nothing would stop a donor from leaving an agency that complies with the ASRM/SART guidelines and switching to a non-member agency that has no compensation limits. How this reality will impact the plaintiffs’ claims will be one of the issues I will be closely watching.