In a sharp divergence from the guidelines of some scientific organizations and the laws of other states, such as California, which forbid such payments, New York last week became the first state to allow taxpayer-funded researchers to pay women for eggs usable in stem cell research. The decision is controversial, both because of the underlying debate surrounding stem cell research, and because of a lingering conviction in some quarters that women should not receive payment in exchange for reproductive material.
Payment has long been provided for eggs to be used in fertility treatments -- data suggest that in 2006 alone nearly 55,000 children in the United States were born through assisted reproduction, more than 7500 of whom were created through the use of “donated” eggs. (See here for the source of this and all other facts and figures in this post). Nonetheless, controversy continues to surround the issue of payments to egg donors, as exemplified by the caps on payment adopted in New York: the Empire State Stem Cell Board ruling requires researchers to follow the American Society for Reproductive Medicine (ASRM) compensation guidelines, which state that “sums of $5000 or more require justification and sums above $10,000 go beyond what is appropriate.”
The New York payment limits are sufficiently high that they are unlikely to have any practical affect on the ability to pay and recruit egg donors for stem cell research. Egg donor compensation in the United States varies widely, with prices as low as $1,500 and as high as $150,000 reported, but surveys of fertility clinics and donor agencies listed with the Society for Assisted Reproductive Technology report average compensation rates per donation cycle of $4217 and $5200, respectively, although there are reasons to believe that these figures may understate the true national average.
Nonetheless, I was disappointed to see New York follow the trend of attempting to limit compensation to women for the provision of a valuable, time-consuming, and uncomfortable service that poses some health risks. As I argue here, the ASRM oocyte-donor compensation guidelines amount to horizontal price-fixing of the type long considered per se illegal in other industries. Moreover, the continued insistence (in the face of substantial evidence to the contrary) that egg donors are—and should be—motivated primarily by altruism and the desire to help others, rather than by the desire for monetary compensation, is problematic on a variety of levels.
The contrast is particularly stark in comparison with the presumed motivations of sperm donors, who are recruited through materials that ask, “Why not get paid for it?” and advertise, “your sperm can earn!” In fact, the insistence that sperm donors are motivated primarily by a desire for monetary compensation is so strong that potential donors expressing altruistic motivations are frequently viewed with suspicion and presumed to harbor an egomaniacal desire to propagate.
Finally, maximum wage restrictions are an odd – one might argue, backwards -- response to concerns over the financial coercion of poor women. The ability of any sum to coerce action is a direct function of that person’s financial need. Egg donor compensation caps, without reference to the potential donor’s financial status, do nothing to address financial coercion objections. Ironically, the most likely effect of the ASRM price cap is to drive from the market for eggs used in fertility treatments the most highly desired egg donors, who tend to be better-educated and of a higher socioeconomic status. These donors should be in a better position to evaluate the risks of egg donation against the monetary benefits and should be less susceptible to the “coercive” effects of monetary compensation, because they are more likely to have other income opportunities to choose from.
Absent a significant shift in the societal conception of motherhood, it may be the case that appeals to altruistic impulses will always play a vital role in the manner by which our society understands egg donation and even in the way that egg donors understand themselves. But the fertility and stem cell industries are big business in this and other countries, and the persistent dialogue of gift-giving and altruistic donation that surrounds egg “donation” may help to obscure its highly commercial nature and the potential industry benefits of controlling egg prices.
Related Post: A New Meaning To "Nest Egg"
Query whether any of these transactions could be deemed a "sale" of "goods," triggering application of UCC Article 2.
Posted by: Tim Zinnecker | June 29, 2009 at 10:07 AM
A 61-year-old woman gave birth to her own grandchild using an egg donated by her daughter, a clinic in Japan has said.
The surrogate mother is believed to be oldest woman to have given birth in Japan. http://infertilityuk.wordpress.com/2009/09/23/egg-donation/
Posted by: A 61-year-old woman gave birth to her own grandchild using an egg donated by her daughter | September 23, 2009 at 11:23 AM