Egg donation price fixing lawsuit: Did fertility clinics conspire to limit payments to women?

Women Don’t “Donate” Eggs, They Sell Them. And They Should Get a Better Price.

Women Don’t “Donate” Eggs, They Sell Them. And They Should Get a Better Price.

Eric Posner weighs in.
July 29 2015 1:58 PM

It’s Not Donating. It’s Selling.

Fertility clinics’ feeble justifications for fixing the price of human eggs.

An employee demonstrates the process to extract eggs in a lab at the e-Stork Reproductive Center in Hsinchu, northern Taiwan, August 8, 2013.
Egg extraction at a lab in Taiwan.

Photo by Pichi Chuang/Reuters

If a woman supplies one of her own eggs to a fertility clinic, how much should she be paid? Under the economic laws of supply and demand, the price of the egg will reflect a balance between the willingness of one party, usually an infertile couple, to pay and the cost in pain, risk, and trouble undergone by the woman who provides the egg. Prices could be as high as $50,000, or more. But women are typically paid $5,000–$10,000. That’s because of a price-fixing conspiracy among medical clinics—according to a lawsuit that is making its way through federal court.

The plaintiffs are women who provided eggs to fertility clinics. They argue that clinics have conspired through two trade organizations—the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology—to set prices below the market rate. ASRM issued guidelines recommending a price of no more than $5,000 and stating that prices above $10,000 “are not appropriate.” If this is true, it is a straightforward violation of antitrust law—which bans competing firms from fixing prices—and the plaintiffs will win their case.

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The defendants don’t deny that they published price guidelines, but they and their supporters argue that they were justified in doing so. They claim that if egg prices are too high, women will not be able to resist the fee and will ignore the risks of surgery. Or that women will lie about health problems or negative traits that would screen them out. Some people argue that women shouldn’t be allowed to sell their eggs because we don’t want to “commodify” body parts, and $5,000–$10,000 is a reasonable price for the time and effort of “donating” (rather than selling) the eggs.

Price-fixers always offer an excuse for their behavior, but these arguments are feeble even by normal litigation standards. Men are allowed to sell their sperm, so why shouldn’t women be allowed to sell their eggs? True, producing enough eggs to harvest requires hormone treatments, and retrieving the eggs requires surgery, and both procedures can be risky. But normally we allow people—women and men—to take risks if they want to. Women, like men, are allowed to take risky jobs like logger, fire fighter, and roofer in return for the higher pay that these jobs offer. Even sperm donation is not risk-free: One must drive to the medical clinic, after all.

If it’s true that a high price would cause women to lie about their health problems to avoid being disqualified from egg donation, then every clinic has an individual incentive not to offer an excessive price. The clinics don’t need to agree on a set price to do this. And the argument that $5,000-$10,000 adequately compensates women for their time, risk, and pain makes no sense at all. It may compensate some women to their satisfaction, but it forces others out of the market.

Kim Krawiec, a professor of law at Duke University, thinks that sexism has allowed this (alleged) price-fixing scheme to last as long as it has. Women are supposed to be nurturers and caregivers, and so people are uneasy at the thought that women might want to sell elements of their reproductive faculties for cold cash. Price-fixing helps allow everyone to maintain the fiction that the eggs are “donated” for altruistic reasons rather than sold for profit, with the women compensated for the risk and discomfort only. That’s why ads that recruit women seek “sensitive, sunny Samaritans” who want to “give the gift of life.” By contrast, ads that seek sperm donations from men ask, “Why not get paid for it?” assuring men that “your sperm can earn!”

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Reproductive technology has always been controversial. The major controversy surrounding egg “donations” (really, sales) is the unabashed effort by fertility companies to attract women with certain preferred traits—including beauty, height, intelligence, and athletic ability. The worry seems to be that infertile couples will want their children to inherit half their genes from supermodels with genius-level intelligence, and so the supermodels will command a premium in the egg market. And indeed, companies typically screen for IQ and related traits.

But why should we care? To the extent that their superior traits will be passed on—and not hopelessly diluted by the middling genes of the beta males who fertilize their donated eggs—the next generation will be somewhat better-looking and more intelligent than it would otherwise be. Infertile couples get to have kids they want, and while those couples bear the burden of rearing the supermodels’ spawn, the supermodels can return to work and help close the pay gap between men and women.

This phenomenon is not new—people have sought out top-quality mates and shunned genetic losers since the origin of the species. And while new technology has made it easier to do so, the incentive to engage in this style of private eugenics remains too weak to make a noticeable difference in the gene pool. In fact, the instinct to reproduce works against it. Nearly everyone wants to pass on his or her own genes, no matter how ordinary they might be, rather than help someone else, even a superwoman, pass on hers. That’s why infertile couples use the sperm or egg of the fertile partner rather than try to obtain genetically unconnected offspring from the egg and sperm of two superior strangers. A market in egg donations will spread preferred traits throughout the population rather than concentrate them in the progeny of superwomen who tend to marry supermen.

Worries about markets in human eggs reflect a deeper fear, I suspect—the primal fear of Tampering with Nature. Since Prometheus and Pandora, human beings have defied the gods and been sorry for it. Science has destroyed these old myths but replaced them with a modern set of hobgoblins—climate change, nuclear proliferation, malevolent androids possessed of runaway artificial intelligence, Earth-swallowing black holes caused by errant physics experiments, life-destroying gray goo consisting of self-replicating molecular robots—that carry the same warning: Tamper with nature, and you may pay a price. As a justification for government regulation, this dictum may carry some force. But as a legal defense in a price-fixing case—not so much.