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Assisted Reproduction

Update On Egg Donor Class Action Lawsuit

There has been little news of late regarding the class action lawsuit initiated by an egg donor asserting claims of price fixing and unfair competitive business practices against the American Society of Reproductive Medicine and industry professionals. Here is the most recent update which includes a statement by the Director of Public Affairs for ASRM:

Plaintiff Lindsay Kamakahi says she and other women have, in providing their own eggs for assisted reproductive procedures, been unfairly compensated for their “time, inconvenience, labor and discomfort.” Kamakahi seeks to represent a class that would consist of:

All women who, at any time during the time period starting four years prior to the filing date of this complaint to the present … sold donor services for the purpose of supplying … eggs to be used for reproductive purposes, within the United States and its territories, to any defendant.

The defendants are the American Society for Reproductive Medicine, the Society for Assisted Reproductive Technology and Pacific Fertility Center. ASRM director of public affairs Sean Tipton said the organization considers it a frivolous lawsuit and expects the court to treat it as such.

Kamakahi would also like the District Court to certify a defendant class, consisting of fertility clinics and agencies that are members of the Society for Assisted Reproductive Technology or adhere to ASRM guidelines. The complaint excludes as defendants clinics and agencies in Indiana, which has a statutory cap on such payments. The defendants control over 85 percent of the purchasing market for donor services in the United States, which involves annual sales of about $80 million, according to the complaint.

In 2000 the defendants decided to suppress the price paid for donor services, the suit says. According to ASRM and SART guidelines, “a single donor will not be paid more than $5,000 without written justification and payments of $10,000 or more are not appropriate,” the complaint alleges.

Kamakahi says the violation of the Sherman Act is apparent. In the complaint, she quotes a commentator:

This naked price-fixing of egg donor compensation is so unusual in the modern U.S. regulatory environment of unrestrained competition that the most intriguing question it raises is not whether it violates the Sherman Act — under existing precedent it does. Rather, the relevant question is how, given the government’s substantial enforcement resources and the presence of an active and entrepreneurial plaintiffs’ bar, this buyers’ cartel has managed to survive unchallenged since at least 2000. The relief the plaintiff seeks includes certification of the suit as a class action, a determination that the defendants are in violation of the Sherman Act and judgment three times the amount of the plaintiffs’ damages.


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