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.
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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
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