Egg Donor sues ASRM over price-fixing, raising ethical questions

May 16, 2011Carole 2 Comments »

Third-party reproduction is a legal and ethical minefield. Perhaps the most recent example of the trouble even well-meaning agencies can get into is the class action law suit against ASRM, SART and various named egg donor agencies brought by an egg donor , Lindsay Kamakahi v. American Society For Reproductive Medicine, Society for Assisted Reproductive Technology and Pacific Fertility Center, Civil Action Case No. 11-Cv-1781, alleging that ASRM, SART and various egg donor programs colluded to fix prices paid to egg donors. If you are an attorney- or just interested in the legal underpinnings of the lawsuit-  and want to see the actual filing, you can download the  legal complaint here.

There is a really interesting series of legal analyses of the complaint by Kimberly D. Krawiec, Esq., a member of the Duke Law faculty.

When Sunny Samaritans Sue

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue, Part III

Politics and Profits in the Egg Business (When Sunny Samaritans Sue IV)

Perhaps one of the most fascinating aspects of Krawiec’s analysis is that from a legal perspective, it’s a slam dunk that ASRM and SART colluded to price fix because they explicitly sought to limit compensation given to egg donors by requiring member practices to limit their payments to egg donors at around $5000. This amount was arrived at by comparing egg donation to sperm donation and extrapolating from the hourly rate provided for sperm donors to arrive at a “fair” price for egg donation. Never mind that unlike masturbation, egg donation is far more likely to be dangerous due to the potential risks associated  with ovarian hyperstimulation and egg retrieval surgery and requires more limitations and sacrifices on the part of the donor while in a donor cycle.

You can download the ASRM Ethics Committee recommendations,   Financial Compensation for oocyte donors 2007 and read it yourself, but I have summarized the main conclusions here.

  1. Financial compensations for egg donors is ethical and justified.
  2. Factors determining the amount of compensation should include the “the time, inconvenience, and discomfort associated with screening, ovarian stimulation, and oocyte retrieval”. Factors that are specifically ruled out or inappropriate to consider for determining compensation are ” 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.”
  3. Here’s the item that initiated the lawsuit: “Total payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate”.
  4. ASRM also encourages donor agencies (this includes private IVF programs with in-house programs) to have a process for full disclosure and counseling of donors. One would assume this would include risks, benefits and alternatives to the donor of proceeding with this medical intervention.
  5. ASRM recommends that donor agencies are transparent and fully disclose their eligibility criteria and oocyte allocation policies regarding oocyte-sharing programs. Oocyte sharing is a process in which more than one (usually) two patients share one prolific donor.
  6. ASRM recommends that donors be treated like any other patient by the physician.
  7. ASRM recommends that programs should have and disclose their policies regarding who pays for the donors medical costs especially if the donor experiences medical complications.

SART went further in support of alleged price-fixing by requiring member clinics to adhere to ASRM guidelines (including fixed donor prices) as a function of SART membership, perhaps the definition of price fixing. The fact that this “collusion” was done in full view and was in effect even before the 2007 guidelines (first pricing guidelines published in 2000) and was largely ignored by everyone is interesting in itself. This class action lawsuit brought on behalf of donors has effectively changed the lens through which egg donation compensation has been viewed.

Before the current law suit, the public’s perception of egg donation compensation was perhaps most influenced by Aaron D. Levine’s widely publicized report for the Hastings Bioethics research center, Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors, in which he concludes that self-regulation by the fertility industry failed to control excess compensation paid to donors. He points to examples such as compensation paid “elite” donors, those graduating from elite universities (Harvard, Yale etc) or with exceptional IQ or SAT scores. In fact, Levine quantified this egg inflation, reporting that “for each 100-point increase in her SAT score, women at elite universities can earn an extra $2,350 and up to $50,000 per donation in violation of the voluntary ethical guidelines put forth by ASRM”.

The ASRM guidelines on donor payments may have arisen from a need to try to defuse some of the public backlash against the widespread, decade long disapproving media coverage of “excess” donor compensation examples. The IVF industry generally does not suffer from an excess of positive press and the possibility of comprehensive federal regulatory oversight (as is common in many countries) is an unwelcome prospect to many IVF providers. Limiting compensation may have been an attempt to defuse this backlash against perceived unethical practices around egg donation. Obviously the ethics committee needs to run their future suggestions, at least as regards pricing,  past in-house counsel before releasing them.

In an earlier article, The value of smart eggs, Krawiac questions the underlying assumptions that produced the public outrage over compensation such as “(1) that oocyte donor compensation is commodifying; (2) that oocyte donor compensation, especially at high levels, is coercive or exploitative; and (3) that selecting and compensating oocyte donors on the basis of personal characteristics, such as ethnicity or intelligence, is ethically problematic.” She disagrees with all three assumptions and argues that egg donation is perhaps a taboo marketplace but it is a marketplace and donors should get what they can get in this market. She argues that it is not donor compensation that is unethical but quote,  “It is ASRM’s paternalistic and misguided attempts to control oocyte donor compensation through the same type of professional guidelines that courts have rejected when employed by engineers, lawyers, dentists, and doctors that should raise an ethical red flag.”  She argues that once again, the medical industry is being paternalistic to women regarding matters of reproductive choice.

So on one hand, there is an ethical argument for limiting compensation and on the other, the ethical argument that egg donation is a market driven service like any other and the egg donor should have the right to get the “market rate” for her donation.

Pam Madsen, the first Executive Director of the American Fertility Association and now a patient advocate and writer of The Fertility Advocate has also written about this class action suit in several blog posts,the first called “In The World of Infertility: Is Price Fixing Now on The Menu?”. in which she introduces and explains basis of the lawsuit. But perhaps most interesting was Ms. Madsen’s later post ” The donor egg pricing conspiracy heats up!!”, in which she shares comments from Darlene Pinkerton, Founder of A Perfect Match, one of the donor agencies named in the suit.  Ms. Pinkerton who has resigned from SART because she does believe that ASRM and SART efforts to limit donor compensation benefits neither the donor nor the recipient.  Ms. Pinkerton’s comments are very interesting because she is coming at it from the donor agency perspective.  In Ms. Pinkerton’s opinion, ASRM and SART want to limit donor compensation for two reasons, namely, quote:

“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.”

The whole egg donor compensation debate is like fun house mirrors. What you see depends on where you stand. If you think egg donation is a step along the slippery slope to child selling, you will see any compensation as too much and likely argue for only altruistic “compensation-free” egg donation. You will likely welcome any limit on payment for egg donation and likely be offended by elitist pricing. You probably would be inclined to support ASRM’s ethical recommendation that legally amount to price fixing.

If you don’t see egg donation as inherently wrong (or almost wrong), you may be more inclined to let market forces regulate prices but might be interested in regulating the manner in which egg donation is performed, medically and legally to protect the rights of both the donor and the recipient.

This interesting legal lawsuit forces a re-evaluation of third party donation and the rights of egg donors. Third party reproduction is inherently complicated because the rights of various parties must be equally protected. Throw in donor compensation in the “marketplace” of egg donation and lines of obligation and responsibility can become even more confused particularly if IVF medical providers also provide egg donor services. What do you think? How can the rights of both donors and patients be protected? What should the role of the medical professional be in the donor marketplace?

 

© 2011, Carole. All rights reserved.

2 Responses to this entry

  • LisainSK Says:

    Now pg via DE, I believe price fixing paid to Egg Donors is essential. I am Canadian and in Canada it is illegal for egg donors, sperm donors, embryo donors, and surrogate to be compensated over and above reasonable expenses upon proof. When egg donors consider donation, they should be doing it for one main reason – altruistic reasons. However, I FULLY support the compensation of egg donors of $5000 because what they went through was hell just to give the donation. But please keep in mind that they are helping to create another human being and no one wants to be born as a result of greed. And $5000 is hardly greedy for the procedure. In fact, $0 is best but such philosophy has wiped out the DE programs here in Canada and rightly so. In no way would I donate if I wasn’t allowed a small, regulated compensation.

  • Megan Says:

    I feel this suit is unmerited as the donor was not forced or coerced into doing a cycle for this rate. She was well within her right to not work with this agency or clinic and certainly could seek out an alternate clinic or agency that would pay her what she felt was reasonable. Just as she had the right to say what she felt was fair, I believe these agencies and clinics should also have that right. As with any other market, that there is a reasonable sum for this type of service which is determined by the industry. Compensation for this type of cycle is to be for the donors time, energy, and efforts only as the couple cannot legally buy the eggs. In fact, if a donor does what she is supposed to and the couple ends up with no viable eggs, the donor is still compensated. That having been said, there is a large number of young women who feel this is an incredible opportunity to help another couple out and to earn some extra money at the same time and who feel that compensation within the guidelines is more than appropriate which may potentially make it more challenging for a donor to ask a fee that is over the $10000 that most agencies and clinics work within.
    I have found after 11 years of working with donors that as compensation increases, there is many times a paradigm shift in the attitudes of many of the donors. They begin to feel that they are in a seat of power and negotiation and many times place ridiculous and unnecessary demands on the Intended Parents or the agency and I have found that their dedication is sometimes compromised as well. This is certainly not true of all donors, but I can say I have seen it happen more times than I would like.
    Since our agency recently signed agreements to serve over 35 countries through a new global program, we created a flat fee system for all donors and it has been a very successful platform that seems to satisfy all parties.
    What I wish was further studied by ASRM is the number of cycles recommended for a donor. Currently the recommendation is that no donor perform over 6 cycles. I would like to know that actual research is backing this up as I am concerned for the donors health that we have solid medically researched and documented reasons for all recommendations.

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