In the United States egg donors are often given substantial financial compensation in return for their donation to infertile couples – a practice that has allowed for shorter waiting lists and a wider selection of potential donors for recipients to choose from. Despite its benefits, this practice has also drawn a considerable amount of criticism from those who are concerned that financial incentive may cloud important medical decision making. However, egg donor Lindsey Kamakahi has now raised yet another issue with compensation through the filing of an antitrust class action lawsuit against the infertility industry on April 12 of this year. Ms. Kamakahi's formal complaint states that the $10,000 ethical cap set on compensation prices for egg donors by the professional organizations which represent fertility clinics is actually too low. She claims that this has resulted in price fixing of the egg donation market and violates antitrust laws which help maintain competitive markets.
Regulation of Egg Donation Compensation
The industry of egg donation in the United States has been around for many years. Healthy and willing female egg donors volunteer their time and efforts to undergo testing and medication administration which results in them being able to donate one or more reproductive eggs to another couple in need. As compensation for their efforts, fertility clinics offer a pre-set amount of money, which is given at the end of the process regardless of outcome.
Unlike many other countries, the United States does not regulate the amount of money that an egg donor can be compensated. Canada, for example, does not allow donors be given any compensation – a restriction that has sharply decreased the amount of donors available to Canadian couples. Also in the the UK, fertility clinics cannot compensate egg donors more than the rate that one would receive byperforming jury duty (approx $100/day). In an interview, Dr. Norbert Gleicher, founder of the Center for Human Reproduction in New York commented on these types of restrictions on egg donor markets:
“Experience demonstrates that where compensation rules are that restrictive only few egg donors come forward. The consequences are long waiting periods for egg donation, poor donor quality, lack of donor selection options, inability to match donors and recipients appropriately and, ultimately, medical tourism from these countries to where egg donors are more widely available.”
Therefore, the absence of government regulation in the US on the egg donor industry has allowed the industry to not only thrive, but grow into one of the world's top places for egg donors and recipients.
However, the freedom for recipients to offer limitless monetary compensation in return for a donation inevitably raises the ethical concerns of how this may affect the decision making of potential donors.
The ASRM and SART Step In
These concerns prompted the American Society for Reproductive Medicine (ASRM) and its sister organization the Society for Assisted Reproductive Technology (SART) to step in and create practice guidelines for egg donation compensation procedures. These guidelines, which were drawn up by organization members and evaluated by an ethical review board, support the idea of compensating donors in a reasonable manner for their time and efforts to make a donation. However, they also consider that offering too much money for eggs may cause some women to conceal medical information or agree to donate eggs even when it is not in their best overall interest. Therefore, the guidelines conclude that, “Total payments to donors in excess of $5,000 require justification and the sums above $10,000 are not appropriate.”
Lawsuit Says Ethical Guidelines Violate Antitrust Laws
According to the present lawsuit, the ARSM and SART represent more than 85% of the nation's fertility clinics and members are expected to adhere to the guidelines as set forth by the organizations.
Failure to do so would cause them to loose their membership and possibly their clients. Therefore, Ms. Kamakahi's argument is that these guidelines have created a price fixing on the egg donation industry, making it not only anti-competitive, but artificially low. Her argument also asserts that as a direct result fertility clinics are pocketing additional profits that otherwise would have been passed on to donors.
Although Ms. Kamakahi's legal team clearly has confidence that there has been a breach of antitrust law, or “conspiracy in restraint of trade” in the egg donation industry, it may be more difficult to prove that ARSM, SART, and fertility clinics have actually benefited from this price restriction.
The Cost and Competition for an Egg Donor
Despite the general perception of the egg donation industry is a high-profit business, what many don't know is that it can actually be quite a complicated and costly fertility treatment to offer to patients. In order to reduce wait times and create optimal donor/recipient matches fertility clinics must invest considerable amount of resources and personnel into pre-screened egg donor pools. Dr. Gleicher explains, “Responsible donor selection is a very detail-oriented, multifaceted process, involving multiple levels of information gathering, face to face interviews and medical testing. As a consequence of such a detailed process, a large majority of applicants will not be accepted.” Therefore, he goes on to explain, the fertility clinics must absorb the financial and resource losses of these rejected applicants.
Egg donation compensation also is not always fixed, but rather varies depending on location.
“Compensation levels for egg donors vary greatly in different cities. The highest fees are currently paid in New York City, where average compensation for egg donors is $8,000”, says Gleicher. Therefore defendants on the lawsuit may be able to argue that there is market competition for potential donors based on the fact that donors can, at any time, choose to contract with a higher paying fertility clinic.
Furthermore, an antitrust lawsuit is essentially claiming that the defendant is preventing a natural competition in a market. However, the compensation for an egg donation is not dependent on the production of the egg or eggs. “What the donor fee is supposed to represent is reimbursement for time and effort the donor extends on behalf of the recipient,” explains Gleicher. “It is NOT a "purchase" of [eggs], as often depicted by the media, because such a transaction would be considered unethical under universally accepted medical ethical guidelines. What the donor fee is supposed to represent is reimbursement for time and effort the donor extends on behalf of the recipient.” Therefore, this assertion that there has been a breech of an “anti-competitive” law may not take into account that the eggs are not actually a market commodity that can be bought or sold.
A Lawsuit Worth Paying Attention To
To date, this is really the first time that an egg donor has come out and challenged the ASRM ethical guidelines, which have up until now been widely accepted in the fertility community. This hot-button issue will likely ignite some renewed debates about the guidelines surrounding egg donors, the lack ofgovernment oversight of compensation measures, and how the sensitive matters of donors and recipients should be handled by authorities within the medical community. The results of the unfolding of this lawsuit over the upcoming months may actually change the future of egg donation and it something that I would suggest all members of the infertility community should tune into.
The ARSM has not yet issued a formal response to the lawsuit.