U.S. District Judge Saundra Brown Armstrong has refused to dismiss the class action suit against ASRM (the American Society for Reproductive Medicine), SART (the Society for Assisted Reproductive Technology), and all clinics and egg-donor agencies that agreed to follow their pricing guidelines. (I’ve uploaded the order here: Download Order denying mtd) The suit alleges that the caps the societies have imposed on permissible oocyte compensation are per se illegal.
As regular Lounge readers may recall, this is a case about which I’ve blogged quite a bit, and I wrote a law review article in 2009 arguing that the ASRM-SART Ethical guidelines were simply horizontal price-fixing of the type long considered per se illegal in other industries. And, as I noted of the ASRM-SART motion to dismiss shortly after it was first filed back in July of 2011, “this sounds suspiciously like the standard, and typically unsuccessful, professional association defense.”
As a refresher, ASRM guidelines state that any payment by a member clinic to an egg donor in excess of $5,000 requires justification, and any donor payments above $10,000 "go beyond what is appropriate." The societies claimed that the pricing guidelines were not a per se violation because they were motivated by ethical concerns, rather than by a desire to enrich the societies or their member clinics and agencies.
According to the motion to dismiss, the maximum price rules serve several salutary functions: (1) they protect the health and safety of egg donors and infertile patients by reducing their incentive to hide medical information, (2) they resolve "social welfare concerns" about the exploitation or undue inducement of egg donors, (3) they protect against the devaluation of human life, and (4) the price caps provide access to donated eggs for infertile couples with limited economic means. Regular Loungers are already aware of my views on these arguments, and those of you new to that debate can catch up by following the links below. Judge Armstrong concluded that these issues were debatable and denied the motion to dismiss, refusing to hold as a matter of law that per se analysis should not apply to the societies’ pricing guidelines.
Judge Armstrong also addressed one argument under the rule of reason analysis that I had not noticed in the pleadings: ASRM and SART attempted to define the relevant market to include numerous other "alternative income-generating opportunities" that are "close substitutes for egg donation," including “blood, platelet, or plasma donation or paid clinical trials by hospitals, universities, companies, or research institutions.” Really?? I’ll anxiously await the evidence on that. The Judge refused to settle this at the pleading stage as well and denied the motion to dismiss under rule of reason analysis.
I will provide further updates on the case as I get them and many thanks to my colleague, Barak Richman, for forwarding the latest news on this front.