Reproductive medicine has long been criticized for its commercial aspects — for being more like an industry than a medical practice. Run a Google search for “the baby business” and you will not only turn up Debora Spar’s book, but some 954,000 exact matches. Now lawyers are getting in on the action: It’s not just an industry, it’s (allegedly) a cartel!
In April, San Francisco attorney Rosemary Rivas, of Finkelstein Thompson, filed suit on behalf of Lindsay Kamakahi against the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), and the Pacific Fertility Center. They are accused of price-fixing, and the suit seeks “class certification, an injunction and class damages for antitrust violations.” The reason? They don’t pay enough for women’s eggs.
Actually, the ASRM guidelines [pdf] do not allow, technically, for the purchase of eggs at all. They suggest compensation for “the time, inconvenience, and physical and emotional demands associated with the oocyte donation process” and stress that clinics should “avoid putting a price on human gametes or selectively valuing particular human traits.” In practice, of course, egg “donors” [sic] are routinely paid for their eggs, and that’s how everyone sees it. And it’s quite common to see ads that very specifically value human traits.
CGS and a number of women’s health experts and organizations have long criticized the commerce in women’s eggs, on various grounds. The most obviously pressing are concerns about the health risks of egg retrieval — the ones we know about, and the inadequacy of what we know because there’s been so little follow-up of women who undergo it. (Other concerns include commodification in general, and the possibility of eugenic applications.) The lack of information about risks, combined with the temptation of substantial cash payments, makes “informed consent” quite problematic.
Some states, including California and Massachusetts, forbid compensation beyond reimbursement for expenses for eggs for research, though not for fertility treatment. Many countries similarly restrict compensation for any purposes. The industry has mostly faced activists trying to prohibit payments; they must be a little surprised to be sued from the opposite direction.
The ASRM guidelines do specifically limit compensation by saying that payments above $5000 require justification and payments above $10,000 are inappropriate. Therefore, claims the plaintiff’s attorney, the ASRM, SART, and the clinic are engaging in a “conspiracy in restraint of trade” and thus breaking anti-trust law to gain “anti-competitive profits for themselves.”
The lawsuit may face some difficulties. While there is certainly commerce in eggs, including international trade, and fraudulent agencies, the payment structures are voluntary guidelines, which are regularly ignored. One recent Seattle flyer seeking a specific type of young woman to provide eggs offered $8000; that’s said to be average. Estimates vary in this largely unregulated industry: a 2007 study put the national average at $4,216, while a 2010 survey noted that “nearly half” the advertisements exceeded $10,000. (They also violated guidelines by valuing specific characteristics such as SAT scores.) The advertisement above says, “Compensation begins at $5000!” and hints at ten times that, suggesting women can “earn up to $50,000.” There are reports of offers or payments as high as $100,000. There’s really nothing to stop a clinic from paying as much as they want.
We have further proof that, in this industry, some voluntary guidelines definitely do not work — the ones about how many embryos to implant. They are routinely ignored by fertility clinics: CDC data shows that on average 2.2 embryos were transferred for women under 35 in 2008 (the last year for which data are yet available), although the guidelines in effect since 2006 suggest 1 or 2 at the most. The “Octomom” was of course an outlier, but in response to that scandal the ASRM itself started discussing the need for “regulatory teeth.” If they cannot stop doctors from implanting multiple embryos, can they really be seen as restraining trade by suggesting a cap on payments for eggs?