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ASRM Defends Ethics Of Egg Donor Compensation Cap In Recent Court Filing

As we previously blogged about, a federal antitrust class action lawsuit was filed against the American Society of Reproductive Medicine (ASRM) and other defendants alleging price fixing in setting financial limitations on how much an egg donor can be compensated. On Friday, the ASRM filed a Motion to Dismiss the lawsuit, alleging legitimate ethical reasons exist to justify the cap:

The medical association’s motion maintains that the suit, filed in April by egg donor Lindsay Kamakahi, fails to state a claim under antitrust law because it does not contest the basic rationale for the price limits, which were imposed to address ethical concerns. According to the association, “even the most cursory examination” of the suit shows that it deals with issues far different from the typical antitrust case.

“Plaintiff’s complaint is nothing more than an attempt to shoehorn legitimate ethical rules promulgated by medical associations into Sherman Act concepts far removed from the professional judgments embodied in the challenged ethical guidelines,” the motion said. The complaint alleges that the association and its affiliate, co-defendant the Society for Assisted Reproductive Technologies, kept the prices for donor services artificially low by setting a cap on how much member clinics could pay egg donors.

The complaint said the ASRM had set guidelines that any donor compensation above $5,000 required justification, and that any donor payments above $10,000 “go beyond what is appropriate.” Those limits have suppressed prices and eliminated competition for
egg donation services, the suit claims. However, the defendants maintain there are legitimate ethical reasons for the limits that cannot be challenged under antitrust law, which only prohibits restraints on trade that are unreasonable. The payment limits for donors were designed to protect women who donate eggs from exploitation while ensuring that they were fairly compensated for the time and inconvenience of egg donation, the motion claims.

According to the motion, the limits were imposed due to concerns that high payments could cause women to withhold relevant medical information so as to be allowed to donate, or to discount the physical and emotional risks of egg donation in order to address their financial situation. In addition, the motion claims, high payments would convey the idea that eggs were
commercial property and could be used to promote the birth of people with socially desirable traits, a type of “positive eugenics.”

The complaint does not suggest these ethical considerations are ill-founded, or that the payment limits fail to address those issues, the motion claims. “Plaintiff seeks to turn egg donation into a pure commercial transaction without any consideration that the ‘services’ that would be ‘bought’ and ‘sold’ are designed to lead to the creation of embryos and, if the process is ultimately successful, the birth of a child,”
the motion said.

The U.S. Supreme Court has “repeatedly cautioned against categorically condemning professional decisions and practices” because antitrust rules for ordinary business settings may be inappropriate in a professional context, the motion claimed.
The suit says that 85 percent of fertility clinics in the U.S. are members of SART, and seeks to represent a class of all women who sold donor services to one of them over the past four years. It seeks a declaration that the price limits are void, and an injunction barring future price limits.


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