The Faculty Lounge

Race and Infertility Care

Several research assistants and I spent last summer looking at websites from virtually every US fertility clinic.  One of the things we recorded was the race of any babies pictured on the first page of the clinics’ websites.  I have no background in critical legal studies or critical race theory, so I am probably not the best person to do this study, but I was looking at other advertising issues on the website, and I had read that minorities use assisted reproductive technologies at a much lower level than Whites, despite experiencing higher rates of infertility and even when states mandate fertility insurance (which should control for wealth effects).

 I was surprised by the results, which are included here.  It turns out that the picture of fertility care in America on websites is quite literally a picture of White doctors helping patients have White babies. 

Secrets of a Sperm Stealer?

A resident of Allegheny County, New York is suing a fertility clinic and medical lab in Texas on the grounds that the clinic used his stolen sperm to inseminate his girlfriend.  (For a copy of the complaint, see here.) Jamie Pressil alleges that "[d]ue to the unexpected birth of his children caused by Defendants, Pressil suffered severe mental anguish and incurred economic harm due to substantial child support payments.  

The factual background is a bit murky, but the alleged basic storyline appears to be this: Mr. Pressil's former girlfriend and domestic partner, Ms. Anetria Burnett, supposedly secreted Mr. Pressil's used condoms to a fertility clinic, which then used Mr. Pressil's sperm to inseminate Ms. Burnett.  Ms. Burnett subsequently gave birth to twins. Mr. Pressil took a DNA test that proved he was the father and then began paying child support of $800 per month. Related news reports are here, here, and here. 

The clinic reportedly has a copy of a consent form allegedly signed by Mr. Pressil, as well as the results from bloodwork allegedly performed on Mr. Pressil around the time of Ms. Burnett's insemination.  The costs of the fertility services were charged to Mr. Pressil's credit card.  See news stories here and here.

In a separate action, Mr. Pressil has been charged with assaulting Ms. Burnett in 2010 (see news story here).

No doubt, there are several factual issues to be resolved.  But if the clinic did in fact use the sperm without Mr. Pressil's consent, might the clinic have violated Mr. Pressil's constitutional rights (assuming one could show state action)?  Glenn Cohen has suggested a constitutional right not to become a parent in his Stanford Law Review article, The Constitution and the Rights Not to Procreate.  And if Ms. Burnett did take Mr. Pressil's discarded condoms, did she steal his "property"?  Does it matter how and where the condom was discarded?  Does any "theft" only become legally significant if stolen sperm is "converted" into children?

Gifts in Name Only: Kieran Healy on Markets for Organs

Via Al Roth comes news of this Kenan Institute for Ethics profile of my colleague, Kieran Healy, which explores the question: Should there be a market in human organs? 

But what is really wrong with having a market—a system for buying and selling—our own organs? Certainly, there’s little doubt that it would have some unpleasant aspects. There would be many cases where a wealthy individual bought a kidney from someone much poorer. The prospect of the poor literally giving up their bodies to the rich is enough to make many people recoil in disgust. . . .

In the end, there is less of a division between gift-giving and market exchange than we might think. Incentives are not incompatible with the kind of moral obligations associated with donation. We may wish for a bright line between virtuous gifts and selfish markets, but the boundary is constantly crossed, in both directions. 

For example, gifts can be easy vehicles for getting people in your debt, or obtaining something for free, and people calculate very precisely what the “right” amount to spend on a present is when birthdays or holidays come around. On the other hand, markets routinely have strongly moralized aspects, as we take care to pay people in ways that signal our esteem for them. We discreetly reimburse people for their time, or give them an honorarium, say, rather than paying them in cash by the hour. 

A lawful market in organs would probably be considered more legitimate if it resembled a gift exchange, as we see already taking place in the case of human eggs, where the language of donation predominates even though the eggs are bought and sold and prices are widely advertised. However, even today, with the exception of kidneys, you can’t get a transplant unless you have the insurance to pay for it, despite others’ willingness to donate their organs. So why should people feel any obligation to give to a system that serves those who need it so poorly?

I agree with Kieran that financial incentives for human organs are more likely to win social acceptance if they resemble the gift-based allocation systems that have already gained social legitimacy. And the oocyte market – a clearly market-based system with the trappings of gift, including the language of donation -- is a good example of this phenomenon. 

In fact, as I’ve discussed before, this disconnect between market realities and gift narrative is an important feature of many taboo trades.  By normalizing otherwise jarring transactions, gift narratives may facilitate markets that otherwise would stagnate under the weight of social disapproval. For those, like me, who believe there is social value in enabling the infertile to reproduce or those dying from kidney failure to live – and, by corollary, allowing those who consider themselves better off by the receipt of compensation in exchange for an egg or kidney – to do so, this is a good thing. 

At the same time, though, the oocyte market example also illustrates the costs of denying market realities in favor of the pretense of gift exchange -- gifts in name only: 

(1) Legal misfit

Gift-based exchange regimes are typically governed by a different set of legal rules than are market-based exchange regimes.  We tend to recognize, for example, the possibilities for opposing interests and opportunistic behavior in a regime of market-based exchange.  And many legal rules governing market-based regimes are designed with these considerations in mind. In contrast, we often assume (incorrectly, especially when the gift is one in name only) an absence of opportunism and an alignment of interests in the case of gift-based exchange. 

(2) Social stereotypes

I do not know if, or how, this would play out in organ markets, but it has for some time concerned me with respect to reproductive markets, especially the oocyte and surrogacy markets.  Scholars have long noted the presumption that many services provided by women, including reproductive and domestic labor, should be provided altruistically, despite their high economic value.  Says Mary Anne Case, for example:

Much of what women have market power over, such as their sexual and reproductive services, they have long been expected not to commodify at all. Even when monetary compensation is allowed, it is often kept low and female providers are expected to be interested in rewards other than money.

The continued insistence 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, threatens to reinforce gendered notions that the market activities of women are driven in large part by altruism and that women as a group are uninterested in reaping the full gains of trade from the provision of their goods and services. 

The comparison to sperm markets is especially telling. The insistence on the altruistic motivations of egg donors is in stark contrast to 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!” 

More directly, as Rene Almeling has documented, there is significant societal pressure for egg donors to profess altruistic motives, and oocyte donor agencies and consumers dislike egg donors who appear overly money-motivated. Do these attitudes affect compensation negotiations? Are prospective oocyte donors able to drive the hardest economic bargain without signaling a disqualifying character flaw—an overriding interest in monetary compensation? In the absence of accurate oocyte pricing data it is impossible to know for sure, but the possibility cannot be ignored.

(3) Market dysfunction

Treating market-based exchange systems as if they were gift-based can lead to a variety of distortions.  For example, strict limitations on market exchange for products and services destined to be undersupplied by gift-based systems may lead to black and gray markets, whose participants are left without the regulatory protections that legal markets might provide. 

And in the oocyte market, the narrative of donation has for many years distorted analysis of the market, facilitating open agreements to limit egg donor compensation of they type long considered per se illegal in less emotionally-charged settings.  But rather than accepting the oocyte trade for what it is – a profitable industry -- the starting assumption has been that the egg market must differ from other markets because egg donors are engaged in a form of philanthropy that distinguishes them from suppliers in other industries. These restrictions on egg donor compensation are only now facing legal challenge, prompting a re-evaluation of the ethics of donor compensation limits among many in the fertility industry.

…………………………….

In the end, gifts in name only represent a trade-off.  On the one hand, the language of donation coupled with the realities of market-based exchange has the capacity to legitimate otherwise troubling exchanges, facilitating life-saving operations and parenthood for the infertile.  At the same time, gift-in-name-only exchange has consequences for the social, legal, and market structure of these industries, and for the consumers, producers, and others, including the public-at-large, affected by them.

CA Baby Selling Ring Busted

A California lawyer specializing in reproductive law and several others pled guilty on Tuesday to conspiracy to commit wire fraud in connection with what federal prosecutors have labeled a “baby-selling ring.” 

From the plea agreement:  (Download Plea Agreement)

 You can download the full plea agreement here  Download Plea Agreement

Ironically, the primary defendant, Theresa Erickson, a California lawyer specializing in reproductive law, once maintained a reasonably popular blog site dedicated to reproductive law issues and developments that I sometimes read.

(HT: Spin Doctor)

ASRM Seeks Dismissal of Egg Donor Suit

From Law360 (subscription required for full article access):

Law360, New York (July 18, 2011) -- The American Society for Reproductive Medicine on Friday asked a California federal court to throw out a proposed class action alleging it fixed prices for human egg donation services by setting maximum compensation rules for its member clinics.

The medical association's motion maintains that the suit, filed in April by egg donor Lindsay Kamakahi, fails to state a claim under antitrust law because it does not contest the basic rationale for the price limits, which were imposed to address ethical concerns.

I don’t have access to the full article, but this sounds suspiciously like the standard, and typically unsuccessful, professional association defense.  I’ve discussed those defenses before in a series of posts on Kamakahi v. ASRM (links below) and in a post on Barak Richman’s Rabbinic Cartels paper.  I’ve also specifically critiqued the supposed ethical considerations (commodification and coercion of egg donors and patient protection) here and here.

We’ll have to wait and see how the court rules, I guess.

(HT: Barak Richman)

 

Related Posts:

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

 

Kamakahi v. ASRM et al. — Updates

Barak’s recent paper on the “rabbinic cartels” reminded me that I wanted to provide some updates on Kamakahi v. American Society for Reproductive Medicine et al., No. 11 CV 1781, complaint filed (N.D. Cal. Apr. 12, 2011), a federal antitrust class action seeking damages and an injunction in connection with the American Society for Reproductive Medicine’s guidelines for compensating oocyte donors.  I’ve blogged about the case, and about the oocyte pricing guidelines and oocyte market more generally, several times, including a series of posts ending with this one.

ASRM published a Bulletin last week stating that it was retaining counsel in the case and beginning work on the defense.  This prompted some renewed discussion from commentators on blogs and in legal sources.  I have to say that I have been pleasantly surprised at the thoughtfulness of some of the discussion and commentary relating to the case. 

Egg markets tend to be an emotional topic – far more so than sperm markets.  Our intuitions about egg markets, as with many taboo markets, are often laden with unrecognized class prejudices and anxiety about the body, especially women’s bodies. And, those emotions and intuitions can sometimes lead otherwise sensible people into very insensible arguments that they would never accept in other contexts.

So I was pleased to see discussions such as this one from Fertility Lab Insider: 

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.

And this exchange between Pamela Madsen and Darlene Pinkerton over at The Fertility Advocate is particularly interesting. In it, Pinkerton, Founder of A Perfect Match (and who, according to this, has resigned from SART because of the ASRM-SART efforts to limit donor compensation) weighs in.  She argues: 

The compensation issue with ASRM has not been about making sure the donor isn’t placing herself in harm’s way. We can put many safeguards in place to make sure that she fully understands what she is doing so she is making a truly informed decision and not being coerced to do something she doesn’t really want to do. We can make sure they have psychological evaluations and counseling (BTW: not even required by ASRM) and we can make sure they have legal counsel to go over the consent forms and to make sure their rights are protected (again not required by ASRM)… If this is truly about protection of the donor, then why isn’t ASRM insisting on this for every single donor? Why isn’t ASRM actually protecting the donor regardless of compensation she is receiving? Every donor should have counsel, because a donor who works at a fast food place may be more swayed by $5000 than the donor who is asking for more than $10,000 but is a medical doctor or attorney, like some of my donors are. If they don’t evaluate each donor and allow her legal counsel how can they possibly set a dollar number and say that it is unethical? They can’t, which is why I think the dollar amount is far more self-serving. (emphasis added)

Yep.  As I argue here:

[M]aximum 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.

And this comment from Pinkerton on the incentives of fertility centers with in-house donor programs versus those without is also very interesting and raises a point about variation in the market that I had not thought of before: 

So let’s be real… the majority of physicians making these rules have their own in-house donor programs and stand to lose $$ if they can’t be financially competitive with compensation. The ones that don’t have their own donor programs could care less how much a donor is paid as long as everyone agrees and has counsel. Coincidence? I think not. . . .

The whole post is here and well worth reading in full, as is an earlier post on the suit by Pamela Madsen.

Now, lest you think that the blogosphere is full of only thoughtful, useful commentary on the case, don’t worry.  There’s plenty of rubbish flying about and I’ll be back next week to highlight some of it for you.

Related Posts: 

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

 

The Sperm Bike

I do not make this stuff up.  The Sperm Bullitt recently appeared on the Copenhagen cycling scene, courtesy of Nordisk Cryobank.  Nordisk is one of Europe's leading sperm banks -- the company was looking at environmentally-friendly transport methods to deliver sperm samples to fertility clinics around Greater Copenhagen and landed on the Sperm Bullitt.  In addition to being CO₂ friendly and having a sophisticated cooling system inside the head of the giant sperm cell, the Bullitt provides an added benefit: folks stop to ask about it and have their photo taken with the bike, thus raising awareness of the need for sperm donors. "We're always looking for new donors so it's a fine bonus that the Sperm Cell Bike gets peoples attention," says CEO Peter Bower.

Wonder what sort of reaction that’d get at the next cycling club group ride?

HT: Tyler Cowen

 

Prior sperm posts:

Uncharitable Sperm

Defective Sperm No Basis For Products Liability Suit

Egg Versus Sperm Donation (Part 982)

Does The Number 1700 Cause Sperm To Go Where It Shouldn’t?

Celebrity Look-Alike Sperm Sale

U.K. To Reconsider Payments to Egg and Sperm Donors

More Live Sperm, Dead Donor

Live Sperm, Dead Donor . . . No Case

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

In my last few posts, I’ve been discussing Kamakahi v. ASRM, (N.D. Cal, filed April 12, 2011) a federal antitrust class action seeking damages and an injunction in connection with the American Society for Reproductive Medicine’s guidelines for compensating oocyte donors. So far, I’ve discussed how the oocyte donor compensation guidelines arose, how they are enforced, how the ASRM determined what is reasonable egg donor compensation (all here), and the problems with the ASRM guidelines under antitrust law (here and here). 

Today, I’d like to examine what, to many people, is one of the more interesting questions raised by the case: what do ASRM, SART, and/or individual industry collaborators gain by the egg donor compensation guidelines?  In other words, classifying the guidelines as a per se Sherman Act violation, as I have argued they should be, dispenses with the need for elaborate court inquiries into collaborator intent, anticompetitive effects, and other issues.  Yet this question, though inessential to an antitrust inquiry, is keenly interesting, because the answer is not readily obvious. 

What do ASRM, SART, or individual fertility centers gain from the oocyte donor compensation guidelines?

I see at least two potential industry benefits to the ASRM-SART pricing scheme, one involving profits and one involving politics. 

On Profits

As an initial matter, the ASRM-SART oocyte-donor compensation guidelines may depress the price of some eggs used in fertility treatments, depending on the effectiveness of those guidelines. Such price suppression would entail real costs to both consumers of fertility services, in the form of higher prices and less consumer choice, and to oocyte providers, in the form of lost compensation. 

Infertile couples pay large sums to fertility clinics for the bundle of goods and services (including, in many cases, a human egg) that will result in the creation of an embryo for implantation.  Unless the demand for fertility treatments is completely price insensitive, fertility clinics have the same incentive to contain the price of oocytes (a necessary input into some reproductive services) as any other buyer.

Though Kamakahi, a class action on behalf of egg donors, is a case about supplier harm, it should be emphasized that monopsony markets do not benefit consumers and create a deadweight efficiency loss (as do monopoly markets).  Consequently, today it is well established that horizontal purchase agreements present just as much anticompetitive danger as do horizontal selling agreements. 

Reliable egg donor compensation data is hard to come by: most of the numbers are either self-reported or rely on advertisements on websites and in college newspapers.  For reasons that I discuss here and here, the first source may understate average prices, while the latter may overstate them.  Nonetheless, there are reasons to believe that egg donors raise at least a colorable claim of price suppression, which pre-trial discovery could illuminate.  

First, surveys of fertility clinics and donor agencies listed with SART report average compensation rates per donation cycle of $4217 and $5200, respectively, roughly in accord with the ASRM guidelines.  Second, even studies relying solely on advertising data, which report higher amounts, find some evidence consistent with the influence of price caps.  Third, the complaint discloses that a survey of 375 websites of SART-member clinics found that, of those that mentioned the price of donor services, all of them were at or under $10,000.  Fourth, some fertility centers explicitly reference their adherence to the ASRM-SART price caps.  Says the website of defendant Pacific Fertility Center, as quoted in the complaint, “because of [its] continued efforts to practice medicine within guidelines set forth by ASRM and SART, egg donors participating in our program will NOT be paid above $10,000 per cycle.”  Fifth, and finally, recent sperm donor compensation data -- the same analogy employed by ASRM in 2000 to determine levels of “reasonable” egg donor compensation –suggests that egg and sperm donors receive a roughly equal average hourly compensation of between $75 and $93 for time spent in a medical setting.  This is despite the fact that—because egg donation requires hormone therapy, whereas sperm donation does not—egg donors face pain, discomfort, and health risks not faced by sperm donors, and these risks and side effects extend beyond the time spent in a medical setting. It is reasonable to suppose that egg donors would demand and—under normal market conditions—receive, additional compensation due to these factors.

None of this conclusively proves that egg donor compensation is successfully suppressed by the ASRM guidelines and enforcement efforts – as noted, the available data is sketchy and ultimately begs the question of what price human eggs would command in a market free of such restraints.  But, as previously discussed, price suppression is not a necessary element of a per se case and, in any event, the discovery, dialogue, and, ultimately, trial, should there be one, in Kamakahi should shed light on some of these questions. 

On Politics

If the ASRM- SART agreement is not successfully controlling human egg prices (or even if it is), then what other purpose might it serve? ASRM, SART, and SART-member clinics, doctors, and affiliated egg donor agencies spend time, effort, and money creating (at a minimum) the appearance of cartel enforcement. Yet, cartels are notoriously difficult to sustain. Why exert such effort, if not in the pursuit of above-market profits?

The most plausible alternative scenario is a desire to avoid industry controversy, including controversy related to egg donor compensation. Negative public attitudes toward fertility treatments threaten to prompt into action state and federal lawmakers that, to date, have been largely content to rely on industry self-regulation of the fertility market. It is possible that industry attempts to control egg donor compensation are prompted, at least in part, by a desire to provide the appearance that the industry is addressing issues of public concern and controversy, forestalling the need for state intervention. 

Profits, Politics, or Both?

 In conclusion, ASRM and the fertility industry can’t have it both ways.  Either their “ethical” guidelines on oocyte donor compensation are a farce that do not effectively control egg donor compensation and that, instead, exist primarily to fend off more coercive state or federal regulation (fertility industry self-regulation is, naturally, unique in this respect).  Or the guidelines effectively reduce egg donor compensation below the levels that would operate in a market free of such restraints. 

Or they could be doing both.  But it seems to me that ASRM can’t have it both ways: the guidelines can’t both be an example of effective self-regulation and yet fail to suppress oocyte donor compensation rates.  So, it should be interesting to see the defense strategy – which poison will they pick?

If I, and you, patient readers, have the energy for one more post on this topic, I’ll be back to discuss one thing that is not a potential effect of the oocyte donor compensation guidelines: the protection of oocyte donors. 

 

Prior related posts:

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

 

When Sunny Samaritans Sue, Part III

In my last post on this topic, I discussed Kamakahi v. ASRM, (N.D. Cal, filed April 12, 2011) a federal antitrust class action seeking damages and an injunction in connection with the American Society for Reproductive Medicine’s guidelines for compensating oocyte donors.  In that post I addressed questions of how the oocyte donor compensation guidelines arose, how they are enforced, and how the ASRM determined what is reasonable egg donor compensation.  In this post, I’d like to address the problems with the ASRM guidelines under antitrust law.

I should say at the outset that antitrust experts, in my experience, don’t consider the antitrust issues raised by the case particularly interesting – it’s a naked horizontal agreement to fix prices and is thus per se illegal under section one of the Sherman Act.  What more is there to say?  Though they are right, I think they underestimate the romanticism and/or paranoia, for lack of better terms, that tend to distort discussions of this market.  In other words, very few observers have analyzed the oocyte trade for what it is – a profitable industry.  Instead, the starting assumption seems to be that the egg market must differ from other markets because egg donors are engaged in a form of philanthropy that distinguishes them from suppliers in other industries.  As I’ve argued at length here, this framing is not only unhelpful, but harmful. 

Why are the ASRM oocyte donor compensation guidelines problematic under antitrust law?

Per se agreements are “agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality—they are ‘illegal per se.’” Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 692 (1978).  Classifying an agreement as a per se violation dispenses with the need to inquire into market structure, the market power of the violators, or the anticompetitive effects of the behavior.  The agreements purporting to limit egg donor compensation are the same types of agreements that have been considered per se illegal in less emotionally-charged settings.  

However, courts sometimes analyze alleged anticompetitive behavior by nonprofit or professional associations under a rule of reason or “quick look” analysis, when the same conduct would be considered per se illegal if carried out by business organizations.  Such judicial deference is not explicitly a product of the organizational form or nonprofit status of the defendants, but rather of a perception that, in many such cases, the anticompetitive effects of the agreement or the intentions of the alleged violators are not immediately discernable. As elaborated by the Third Circuit in United States v. Brown University, the Supreme Court:

has been more hesitant to condemn agreements by professional associations as unreasonable per se, or to apply a per se rejection to competitive restraints imposed in contexts where the economic impact of such practices is neither one with which the Court has dealt previously, nor immediately apparent.

As I discuss at length in Sunny Samaritans and Egomaniacs: Price Fixing in the Gamete Market, the negative economic impacts of the agreement among fertility professionals to control egg prices are readily apparent, and there are no arguable procompetitive benefits. Accordingly, this is not the type of arrangement deserving of courts’ more detailed rule of reason analysis such as that afforded MIT in Brown or the NCAA in NCAA v. University of Oklahoma. Nonetheless, as I demonstrate in the paper, the oocyte donor compensation guidelines fail even under a detailed rule of reason analysis.

Indeed, it is telling that neither individual fertility-industry collaborators nor ASRM even raise pro-competitive justifications for the agreements, relying instead on social-welfare justifications. This is because, unlike those rare cases in which courts have allowed naked collusion on price or output, collusion on egg prices does not enable an otherwise nonexistent market to operate or enhance the quality or diversity of consumer choice. Indeed the ASRM–SART agreement has exactly the opposite effect: consumers are deprived of both quantity and choice.

Finally, in rare cases (such as Brown), courts have considered social welfare or other noneconomic justifications for anticompetitive behavior. It is important to note that even the Brown court—notable for its unusual embrace of social-policy justifications—insisted that social policy alone was an insufficient justification for anticompetitive behavior.

It is unlikely, therefore, that a court would entertain social policy justifications for the SART–ASRM price-fixing agreements, and even less likely that a court would find them persuasive in the absence of compelling pro-competitive justifications. Even in the unlikely event that a court was willing to entertain social-welfare arguments in support of price restraints in the oocyte market, however, such justifications should not carry the day. Unlike Brown— in which MIT could point to a social policy (equality of educational access) that Congress had supported for many years and that was arguably furthered by its agreements with the Ivy League colleges to set financial aid compensation— Congress has not ever, much less repeatedly, evinced a desire to exert controls on compensation to egg donors. Furthermore, it is implausible that social welfare concerns primarily motivate the price-fixing agreements in question, because the agreements do not have the effect of promoting the purported noneconomic justifications. 

In my next post, I will explore what is, for many people, the most interesting question posed by Kamakahi: why do the oocyte pricing guidelines exist?  What was the goal? I can think of at least two possibilities, one involving profits, and one involving politics.  I will discuss both in my next post, and also explain why the social welfare justifications are implausible.

 

Related posts:

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

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

 

When Sunny Samaritans Sue, Continued

Last week, I discussed Kamakahi v. ASRM, (N.D. Cal, filed April 12, 2011) a federal antitrust class action seeking damages and an injunction in connection with the American Society for Reproductive Medicine’s guidelines for compensating oocyte donors.  Those guidelines, which I’ve discussed at length in prior posts, specify maximum compensation levels of $5000, in the absence of justification, and prohibit compensation above $10,000.  In my next couple of posts on this topic, I’d like to give some background and analysis on the case, including how the compensation guidelines arose, enforcement efforts, how ASRM determined what is “reasonable compensation,” how the guidelines run afoul of antitrust law, and what we know – and don’t – about egg donor compensation rates.

 

How did the oocyte donor compensation guidelines arise?

As I discuss more fully in Sunny Samaritans and Egomaniacs: Price Fixing in the Gamete Market, ASRM and SART have taken the position, at least since 1994, that reasonable compensation to gamete donors is ethically permissible. It was not until 2000, however, in the wake of increasing controversy, within and without the medical community, regarding rising rates of egg donor compensation that ASRM quantified the definition of “reasonable” and began formal attempts to cap egg donor compensation at a specific amount. (Attempts to control compensation rates within particular geographic regions predate this, as I detail in the paper).

 

How are the compensation guidelines enforced?

Any price-fixing agreement is fruitless in the absence of enforcement efforts, and the ASRM oocyte donor financial-compensation guidelines are no exception. SART, the primary member organization for assisted reproductive technology (ART) professionals in the United States, has a stated purpose of standard setting and maintenance in the ART industry. SART-member clinics, which account for more than eighty-five percent of fertility clinics in the United States, are expected to abide by SART guidelines, including the ASRM Ethics Committee guidelines on oocyte donor compensation.

However, many fertility clinics and customers procure eggs from independent egg donor agencies. Without some mechanism for ensuring their compliance, the SART and ASRM efforts would be ineffective. In May 2005, SART, with the support of two consumer organizations—RESOLVE (the national infertility association) and the American Fertility Association (AFA)—sent a letter to independent egg donor agencies informing them that all donor agencies serving SART-member clinics were expected to abide by the ASRM egg donor compensation guidelines.  The agencies were asked to sign a voluntary agreement with SART to abide by the ASRM guidelines and to inform the SART-member clinics with whom they worked of their agreement. In exchange, donor agencies that had signed the agreement would be listed on SART’s Web site, and their names would be forwarded to RESOLVE and AFA to provide information to patient–consumers seeking guidance in their efforts to locate donor agencies.

In February 2006, a follow-up letter was sent to donor agencies reminding them that a failure to adhere to the SART–ASRM guidelines would result in the removal of their agencies from the list of SART- approved donor programs. Many donor agencies have a vested interest in maintaining good relations (and a customer–patient listing) with SART by agreeing to abide by the guidelines, and, as of June 2008, ninety-three had agreed to do so. 

Finally, individual fertility clinics report their own policing and enforcement efforts of the ASRM oocyte donor compensation guidelines.  In 2006, for example, the Boston Globe reported, after an interview with the medical director of the Donor Egg and Gestational Carrier program at the Boston IVF fertility-treatment center, that Boston IVF keeps records of egg donor agencies that exceed the ASRM compensation guidelines and refuses to do business with them.

 

How did ASRM determine what is reasonable egg donor compensation?

In published work, I compare the egg market to its closest cousin—the sperm market – because, among other insights, I believe it reveals the operation of gendered notions regarding women’s altruistic nature and their role in the marketplace—particularly in sacred areas, such as reproduction.  But audiences have fairly asked, “Why would you think that the sperm market is the proper comparison point?” And in many ways they are right: simple economics and biological differences between the sexes dictate different collection and matching procedures for egg and sperm, ensuring that these markets operate very differently.  Yet the history of the oocyte donor compensation guidelines itself necessitates this comparison, because ASRM justified its assessment of reasonable egg donor compensation by reference to existing sperm donor compensation rates.

The 2000 report of the ASRM Ethics Committee regarding financial incentives for egg donors stated that “[p]ayments to women providing oocytes should be fair and not so substantial that they become undue inducements that will lead donors to discount risks,” and proceeded to analogize the egg- donation process to the sperm-donation process.  A prior study had concluded that sperm donors earned an hourly average of $60 to $75 in 2000. The same study estimated that egg donors spend fifty-six hours in a medical setting per donation cycle. If egg donors were paid the same hourly rate as sperm donors, these calculations would support a payment amount of $3360 to $4200 per egg-donation cycle.

According to ASRM, however, because egg donation involves a time commitment, risk, and discomfort not associated with sperm donation, egg donors may deserve higher amounts.  The report concluded that “[a]lthough there is no consensus on the precise payment that oocyte donors should receive, at this time sums of $5000 or more require justification and sums above $10,000 go beyond what is appropriate.”

In other words, ASRM used sperm donation as a benchmark, and then apparently determined that the additional time, risk, and discomfort experienced by egg donors justified an additional maximum payment, without explaining where those numbers came from or why they might represent a reasonable compensation for the additional burdens that the committee agreed egg donors faced. In 2007, ASRM issued new guidelines that restated these same amounts and rationales.  The amounts have not been increased in the more than ten years since ASRM adopted them. 

In my next post, I’ll address some remaining issues raised by the complaint, including the application of U.S. antitrust law.

***********************************

You can download the complaint here:   Download Filed-Stamped Complaint

And view other news coverage here and here.

(Thanks to Danny Sokol and Judith Daar for the additional news items)

 

Related Posts:

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

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue

 

 

When Sunny Samaritans Sue

On Tuesday an egg donor, Lindsay Kamakahi (on behalf of herself and all others who sold donor services during the past four years), sued ASRM (American Society for Reproductive Medicine), SART (Society for Reproductive Technology), all SART-affiliated clinics, and all egg agencies that agreed to abide by ASRM’s egg donor compensation guidelines.  The suit seeks damages and an injunction voiding the guidelines. You can access the complaint here Download Filed-Stamped Complaint.

This suit has been a long time coming.  Regular Lounge readers will recall that this is an issue I’ve blogged about on numerous occasions (see here and here, for example) and on which I’ve published several articles, including Sunny Samaritans And Egomaniacs: Price-Fixing In The Gamete Market in 2009.

I don’t have time today to go into as much detail as I’d like about the complaint, the history of the pricing guidelines, and why they violate U.S. antitrust law, though I will be back with all of that information over the coming days.  For today, let me simply close with an excerpt from Sunny Samaritans:

This naked price-fixing of egg donor compensation is so unusual in the modern U.S. regulatory environment of unrestrained competition that the most intriguing question it raises is not whether it violates the Sherman Act—under existing precedent it does. Rather, the relevant question is how, given the government’s substantial enforcement resources and the presence of an active and entrepreneurial plaintiffs’ bar, this buyers’ cartel has managed to survive unchallenged since at least 2000. One is tempted to assert that the twenty-dollar bill cannot be real, given that it is still lying on the sidewalk.

Glad to see Lindsay Kamakahi and her counsel reaching for that $20 bill.

Related Posts:

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

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

 

 

Repugnant Transactions on Freakonomics Radio

Freakonomics has a recent (12/29) interesting podcast on repugnant transactions.  Though most of the show is dedicated to organ markets and its alternatives, other repugnant transactions, including prostitution and egg markets are also briefly discussed. 

Al Roth – dubbed “The Godfather of Repugnance” by Dubner -- is interviewed in some depth.  We’ve blogged frequently about repugnant transactions (and, specifically, about Roth and his work) here at the Lounge.  The posts on “repugnant transactions” or “taboo trades” are collected here.  And posts specifically about reproductive markets are collected here.

Important Canadian Ruling on Regulating Reproductive Markets

From the Globe And Mail:

A long-awaited Supreme Court ruling that takes the business of regulating the clinical world of baby-making out of Ottawa’s hands has raised questions about the future of fertility treatments in Canada, and fears that the black market for human eggs and sperm will continue to thrive.

Judges found the power to regulate and license doctors and clinics offering fertility treatments belongs to the provinces, as an area involving the practice of medicine. But the ruling, released Wednesday, upholds other elements of the federal Assisted Human Reproduction Act, including those governing the use of human embryos in stem cell research. . . . 

It was Quebec, later joined by New Brunswick, Saskatchewan and Alberta, that challenged the federal assisted human reproduction law shortly after it was passed in 2004. Quebec had argued that regulatory control over reproductive technologies is a provincial matter.

According to the report, the 163-page opinion continues to allow the federal government to prohibit payment to surrogates and limit payments to egg and sperm donors.  

And from the Toronto Star:

In a landmark advisory opinion, a deeply divided Supreme Court of Canada ruled major sections of the federal law on assisted human reproduction fall outside Ottawa’s power to regulate under criminal law.

The court said it is up to provinces to control the licensing of doctors and clinics and to regulate how they deal with donors and would-be parents, or with eggs, sperms or embryos for research purposes, including developing new genetic therapies for disease. . . .

Certain federal criminal bans still stand. It is still illegal to pay for surrogacy, and the federal government may limit reimbursements to donors and surrogates for expenses only, although the federal government has never defined an allowable expense.

Ottawa may still legislate mandatory written consent of donors; a ban on extracting eggs or sperm from persons under 18 except to preserve their fertility; and a prohibition on “chimera” or human-animal hybrids. 

Those practices, a majority of judges agreed, are rightly up to the federal government to control with criminal laws, under its power to protect morality, public health and security in Canada. 

Much more news coverage over at How Appealing

HT:  Larry Helfer

Fertility, Taxes and Unforeseen Circumstances

Fertility and taxes are seemingly unrelated topics with surprising intersections.  Consider this example. Taxpayers can exclude up to $250,000 (if single) or $500,000 (if married and filing jointly) of gain on the sale of a principal residence, if certain requirements are met.  A homeowner who moves too early or too often gets no benefit … unless the move is motivated by “a change in place of employment, health, or to the extent provided in regulations, unforeseen circumstances.”  One unforeseen circumstance is the birth of twins, according to the Treasury Regulations.  

According to the Centers for Disease Control and Prevention (here), approximately 4.6% of total U.S. births are the result of ovulation stimulation medication alone (without in vitro fertilization). 22.8% of all multiple births in the U.S. in 2005 resulted from ovulation stimulation medication (used alone, without IVF).  Although multiple births are “unforeseen” according to the IRS, the CDC stats suggest otherwise.  Even so, I’m not sure I’d want the IRS to start doing a facts-and-circumstances inquiry every time the parents of multiples try to avail themselves of the tax benefit under IRC Section 121. 

 

Cohen and Chen on Trading-Off Reproductive Technology and Adoption

Glenn Cohen (Harvard) and my new colleague Daniel Chen (Duke – Welcome Daniel!)  have posted Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter? to SSRN.  I read this paper in draft form over the summer and quite enjoyed it, so I’ll be back next week with some more detailed thoughts on Cohen and Chen’s paper and its implications.  At the moment, though, the first week of classes and obligations next week over at the Conglomerate Junior Scholars Forum are keeping me busy.  Here’s the abstract:

For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.

 

In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.

 

First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.

 

Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.

Germany Allows Embryo Screening For Genetic Defects

Last week, the Federal Supreme Court in Leipzig ruled in support of a Berlin gynecologist who had screened embryos created during IVF for genetic defects prior to implanting them. This is an important case in Germany, which has quite restrictive laws on fertility treatments and bans embryo research (gated survey of IVF guidelines and regulations of sovereign nations or political subdivisions thereof).  I previously blogged about Germany’s strict embryo protection laws, which have caused some researchers to move to other jurisdictions.

According to the Washington Post:

The doctor had treated three couples between 2005 and 2006 who could not get pregnant naturally. In all three cases, one of the partners carried the risk of a congenital genetic illness that would have "very likely led to a miscarriage, the death of the newborn right after the delivery or the birth of a critically ill child," the court wrote.

I previously blogged about PGD, embryo screening for sex selection, and the surrounding ethical debates here.

Uncharitable Sperm

 In Free Fertility Foundation v. Commissioner Of Internal Revenue (Filed July 7, 2010) the tax court held that Free Fertility Foundation’s activities may promote population growth and the propagation of one man’s seed, but do not promote health for the benefit of the community.  The foundation thus does not qualify for a charitable tax exemption.  The facts of the case are fascinating on many levels, so I detail them at some length here.

According to the court, William C. Naylor, Jr. (Naylor), a software engineer who holds more than 10 patents on various inventions, founded and incorporated Free Fertility Foundation in 2003 in California as a nonprofit public benefit corporation with the purpose of providing sperm free of charge to women seeking to become pregnant.  Petitioner’s Web site states that:

Naylor is its “single sperm donor” and chronicles Naylor’s life from infancy to adulthood.  Naylor’s donor profile includes photographs, a physical description, health information, family history, and achievements.  In particular, the Web site provides great detail of Naylor’s academic and athletic accomplishments during elementary school (e.g., spelling bee competition), junior high school (e.g., science fair competition), high school (e.g., swimming competitions), and college (e.g., recognition as “top engineering student”).  On the Web site Naylor states:

I derive meaning and happiness from believing that I am making the world a better place.  Being a sperm donor is a way that I can help a few people to have children who otherwise could not.  This makes more of a positive difference to the world than all of the inventions and scientific discoveries that I could ever create.

Naylor is Free Fertility’s secretary and treasurer.  His father, a retired university professor, is the president and chairman.  Naylor and his father are the only board members and officers, and make all determinations about who will receive the free sperm.   Now, this is where the facts get very interesting:

Preference is given to women “with better education” and no record of divorce, domestic violence, or “difficult fertility histories” and are from families “whose members have a track record of contributing to their communities”; who are in “a traditional marriage situation”; who are under age 37; who are ethnic minorities; and who are “from locations where * * * [petitioner has] not previously accepted recipients.”

According to the court, “An organization is not operated exclusively for exempt purposes unless it serves a public rather than a private interest.”  The court goes on to say that the promotion of health for the benefit of the community is a charitable purpose, but only if “the class of beneficiaries is sufficiently large to benefit the community as a whole.”

The court ruled that, although the free provision of sperm may, under some circumstances, be a charitable activity, Free Fertility does not qualify for tax exemption “because the class of petitioner’s beneficiaries is not sufficiently large to benefit the community as a whole.”  Specifically:

the class of potential beneficiaries includes only the limited number of women who are interested in having one man-–Naylor–-be the biological father of their children and who survive the very subjective, and possibly arbitrary, selection process controlled by the Naylors.  Over a 2-year period, petitioner received 819 inquiries and provided sperm to 24 women.  In deciding who receives the sperm, petitioner has certain preferences that narrow the class of eligible recipients. It is not apparent what, if any, relationship some of these preferences have to the promotion of health.  For example, petitioner prefers women “from families whose members have a track record of contributing to their communities” and women “with better education”.  Petitioner does not provide medical care, research, education, or other services that advance or further health.

The court concludes:  “Simply put, petitioner’s activities may promote the propagation of Naylor’s seed and population growth, but they do not promote health for the benefit of the community.” 

The court may very well be right about the limited benefits of Naylor's activities, but the language used in the case does raise the issue of society’s differing expectations about the motives of men and women who part with reproductive material and, in particular, the traditional skepticism associated with claims of altruistic sperm donation. (Issues that I explore in depth here and here).

In contrast to the altruistic rhetoric surrounding even commercial egg donation, sperm donors are typically assumed to donate primarily, if not solely, for profit opportunity. Indeed, the presumption that sperm donors are motivated by profit-seeking is so strong that men expressing altruistic motives are frequently viewed with skepticism and assumed to be deviants or egomaniacs intent on propagating the earth. 

As I discuss in the above-linked articles, this concern is reported in sources as wide-ranging as the Archbishop of Canterbury’s Commission, which worried that sperm donors might invoke “altruistic idealism” to disguise what was actually “spiritual pride” in their greater virility and ability to propagate, to The Genius Factory, which notes that the key attraction of sperm donation to most young men is “making money for something you do anyway,” and that, although some men claim altruistic motives, many of them are really egomaniacs.

As I argue in Sunny Samaritans and Egomaniacs:

Sperm donation, historically associated with deviant behavior, continues to evoke a lingering skepticism regarding donor motives. Monetary payment may have the capacity to normalize these transactions, providing an acceptable donor motive unrelated to sexual impulses or egoistic desires to spread male genes. Sperm donation thus becomes a job like any other, mapping onto more comfortable stereotypes of male interests in financial gain.

The willingness of women to procreate solely for monetary gain, however, causes discomfort of a different sort. As is the case with commercial surrogates, egg donors are reframed as loving altruists, generously giving “the gift of life” to help others less fortunate.

Update:  I realized belatedly that Paul Caron posted on this case also.

HT: Naomi Cahn

Image source

What Religion Is Your Egg?

 Israel has always posed many interesting issues relating to oocyte donation.  Now, according to the WSJ, things are heating up even more. For example, under current Israeli law, only women already undergoing fertility treatments can donate their eggs, leading to oocyte shortages and reproductive tourism.  (For prior Lounge discussions of reproductive tourism by UK couples see here and here).

For example, from the website of IVF@Israel:

Egg donation is subjected to restrictions by the Israeli Ministry of Health. A new "egg donation" law is expected in the "near" future, hopefully. Currently, availability of eggs for donation in Israel is low, since the law limits donation from IVF patients only. However, we do offer egg donation in Kiev Ukraine (a major European airline hub). The IVF in Kiev had received formal recognition by the Israeli Ministry of Health, and is run by Israeli physicians. Donors are healthy, fertile women, who undergo routine tests as recommended by the American Society for Reproductive Medicine (ASRM).

When I was teaching a course on Taboo Trades and Forbidden Markets in Israel earlier this year, the country was still reeling from the scandal at an Israeli fertility clinic in Romania.  Thirty fertility center employees, including two Israeli physicians, were arrested in connection with allegations that the Sabyc fertility clinic in Romania made payments to human egg donors, a practice which is illegal there.

In part because of these and other scandals, new legislation designed to ease the oocyte shortage in Israel has been introduced, which would expand the pool of eligible egg donors. But, according to the WSJ:

In an effort to win support from the Knesset's ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

The debate has raised precarious ethical questions. "The notion that there is Jewish blood is offensive," said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, "'It's not about science; it's about race. It's saying, 'We don't want outsiders, and our criterion is blood.'"

But the legislation is also expected to “increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.”  In the U.S., there have been reports of a shortage of egg donors from particular ethnic groups, especially Jewish, East Asian and East Indian, with resulting price premia for such donors.

(HT: Danny Sokol)

Related Posts:
Egg Versus Sperm Donation (Part 982)
The Value of Smart Eggs

U.K. Oocyte Raffle


How Is An Egg Donor Like A Prostitute?



Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

Adoption: Altruism versus Selfishness

 Tyler Cowen, in response to a post from Bryan Caplan, argues:

Bryan writes:

On adoption: I think that adoption is a noble, generous act, and admire those who do it.  But I personally don't want to adopt.

I can't disagree with any word in that first sentence, but it leaves me uneasy.  Bryan's forthcoming book -- Selfish Reasons to Have More Kids -- is about...selfish reasons to have kids.  (It will, I promise you, be very interesting and make a splash.)  So here is my challenge to Bryan: write down the ten most important selfish reasons to have kids and then ask how many of them apply to adopted children.  Most of them will.  Which isn't to say those are the only reasons to adopt (or have) kids, but they are real nonetheless.  So why do the adopting parents seemingly get described as selfless martyrs?  It's almost as if the selfishness, without the replication angle, has to be stuffed into a box somewhere.  Do all those selfish reasons for having kids require replication as a kind of amplifying mechanism, without with we are left with the slightly underwhelming purely altruistic motives?

From the remainder of the post, I gather that Cowen does not necessarily agree that the primary reasons to have (or adopt) children are selfish ones, though he leaves this aside for the sake of argument.  Instead, the point is that both biological and adoptive parents become parents for similar reasons – selfish ones, under Caplan’s definition -- yet Caplan believes the reasons of the biological parent are primarily selfish, whereas those of the adoptive parent are depicted as primarily generous. 

This is to me a quite fascinating post, as the (ir)relevance of motive is a topic I cover at length in both teaching and research (See, for example, prior posts here and here).   And I’ve frequently wondered why one transaction is routinely characterized as at least partially altruistic (e.g. egg donation, blood donation, surrogacy), whereas reasonably similar transactions are assumed to be largely or wholly selfish (e.g. sperm and plasma donation).  

But this difference in the presumed motives of adoptive versus biological parents is not one that had occurred to me before.  In prior work, I’ve theorized that characterizing particular transactions as selfless or altruistic is a means of normalizing otherwise jarring events – for example, mothers are supposed to love their children, not sell them for profit.  Thus the characterization of commercial surrogacy and oocyte donation as primarily altruistic, selfless acts may reduce the dissonance associated with cash-for-motherhood transactions. 

Is it possible that a similar move is at work with adoption?  And, if so, what is the discord that must be normalized?

Adoption is no longer particularly unusual in this day and age, of course – many of us adopt children ourselves or know others who have done so.  But, as Viviana Zelizer documents, the sentimental value of children (the economically “worthless,” but sentimentally “priceless” child, as she puts it) is a relatively recent development.  Historically, children who were not genetic offspring (thus serving no evolutionary impulse) were valued primarily for their ability to contribute to household income.  (I discuss this social transformation and its impact on the baby market in more depth here).

Today’s adoptive “priceless” children provide neither gene survival nor economic contribution.  This would, it seems, make today’s adoptions selfless acts, as judged by historical standards.

Egg Versus Sperm Donation (Part 982)

 From Strasbourg Observers (a blog commenting on developments in the case-law of the European Court of Human Rights) on the case of S.H. and others v. Austria:

At issue was the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilization. . . .

The Austrian Government argued that “ova donation might lead to problematic developments such as exploitation and humiliation of women, in particular of those from an economically disadvantaged background” (par. 49). The Court’s reply to this argument is, rightly, that potential future abuse is not a sufficient reason for prohibiting a specific procreation technique as a whole if it is possible to devise safeguards against such abuse (par. 77).

 

But what the Court fails to do is to condemn the Government’s argument. Why does this risk of exploitation and humiliation only pertain to women? Why can men not be exploited and humiliated when donating their sperm? The truth is that there is an invidious stereotype at work here that formed the underlying reason for the Austrian legislation. The stereotype is that women’s sexuality is something vulnerable, something holy that needs to be protected, while men’s sexuality is something active – if not aggressive. That is paternalism, not biology.

Radically different attitudes toward egg and sperm donors are not limited to Austria.  As we’ve discussed many times here at the Lounge, the commercial disparities between the egg and sperm markets in the U.S. are vast, ranging from divergent recruiting and advertising techniques to differences in the donor attributes valued by consumers.  One of the most drastic differences between the two markets, however, relates to presumed donor motivations (it is widely contented that egg donors are, and should be, motivated primarily by altruism, even when large sums are exchanged, while sperm donors are presumed to be motivated solely or primarily by profit-seeking); fears of exploitation, coercion, and commodification (raised much more frequently in connection with egg donors than with sperm donors); and the resulting attempts to control egg donor compensation.  (I discuss all of this in more depth in Sunny Samaritans and Egomaniacs: Price Fixing in The Gamete Market.  What’s that you say?  That this is the 7000^th time I’ve blogged about that paper and that anyone with even a remote interest in reading it would have done so already?  Well, you’re probably right.)

There are, of course, many differences between egg and sperm donation (as well as between egg donation and other types of human tissue and plasma donation), including the riskiness of the procedure.   Yet, the widely articulated coercion concern raised against compensated egg donation is particularly one that should be carefully scrutinized for class and gender bias. There are many dangerous jobs regularly performed for compensation, often by employees with lower socio-economic status and education levels than egg donors (who are often valued for their academic credentials, among other characteristics).  Those jobs are also performed primarily, if not exclusively, by men.

I do not mean to suggest that the only taboo transactions of this nature are those in which the primary suppliers are women – Al Roth has a wonderful list of repugnant transactions through time that serves as evidence to the contrary. However, the purported dangers of commodification and the need to protect a supposedly vulnerable population from the coercive effects of the marketplace have been especially prominent defenses of constraints on the markets for female sexual and reproductive labor, including sex work, oocyte donation, and surrogacy.  And, this anticommodification and coercion rhetoric is frequently invoked by interest groups who, at best, have little interest in female empowerment and, at worst, have economic or political interests at odds with it.  (I discuss this in greater detail in my newest draft, A Woman’s Worth.)   

More skepticism, like that shown by the Strasbourg Observers, is in order when it comes to attempts at “protecting” egg donors.

(HT: Larry Helfer)

Related Posts:
The Value of Smart Eggs
U.K. Oocyte Raffle

How Is An Egg Donor Like A Prostitute?


Like A Virgin? We Sell That Here!



Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research



A New Meaning To "Nest Egg"



U.K. To Reconsider Payments to Egg and Sperm Donors