Two hundred years ago, American trusts stood atop several market sectors, effectively owning entire industries. From railroads and sugar to oil and steel these trusts controlled America’s ability to eat, travel and build. Fast-forward two hundred years, and history is replete with other examples of industry domineers, peddling in everything from telephonic services to film stock and internet browsers. When the legislature passed antitrust laws to protect competition, they surely never anticipated human reproductive material to be a beneficiary.
Since 2000, the American Society for Reproductive Medicine (“ASRM”), along with the Society for Assisted Reproductive Technology (“SART”) (a professional society under the umbrella of ASRM), has promulgated a set of guidelines governing its signatories’ conduct, where it concerns compensating donors of ova. It’s this set of guidelines which was called into question in a 2011 antitrust lawsuit by an egg donor….
The final resolution of previous antitrust litigation saw Standard Oil being broken up to become Exxon and others, while AT&T broke up and became Verizon and others. Microsoft’s operations broke into separate units, and Kodak had to license its film processing to third party vendors. Unfortunately, for egg donors, intended parents and assisted reproduction professionals, there is still no clear-cut, final solution for how to handle donor compensation. Although ASRM’s (soon-to-be) former guidelines were somewhat arbitrary and restrictive, there still 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 likely not only exclude a significant number of potential parents from being able to afford an already expensive process, but also 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. For instance, Canada only permits altruistic donation.
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