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

 

Comments

[Joe]

Are there any statistics on the socioeconomic status of the women who donate eggs in the first place? Wouldn't that be a better place to start than with the ethical discussions?

[Kim Krawiec]

There is some, Joe, which I summarize here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356012

Overall, the research indicates that egg donors are demographically similar to sperm donors in terms of age (young), race (white), and marital status (single), but egg donors have lower levels of education and socioeconomic status than do sperm donors, and are more likely to have children of their own. I cannot now remember the raw figures that went into that comparison, though I think it is available from the sources cited there.

There is also evidence of what sorts of demographic traits recipients advertise for, which I’ve discussed before (along with the limitations). http://www.thefacultylounge.org/2010/04/the-value-of-smart-eggs.html

But, as interesting as this information is in its own right, I fail to see its relevance to the question of either the moral or legal permissibility of attempts by competitors to collude on maximum compensation. Suppose egg donors are all poor and uneducated? How does that justify collusion to depress compensation? Suppose that they’re Ivy League girls who just want some extra spending money? Does that mean the Sherman Act doesn’t apply?

I could see why this information might be relevant to debates over the need for mandatory disclosure, counsel, or even minimum compensation rates. But maximum compensation? No.