Posted Thursday, Sept. 10, 2009, at 4:02 PM
I had been avoiding this paper on collusion and price-fixing in the fertility industry because I feared it would send me into a Joe-Wilsonesque fit of rage. But Robin Marantz Henig’s solid DoubleX piece on state laws banning compensation for ova got me thinking about the issue, so I sallied forth and read the thing. At least it woke me up this morning.
Henig’s piece spoke of blanket bans on cash for ova used in scientific research. By contrast, compensation for ova used by prospective mothers is generally seen as a carnivalesque open market free-for-all. As University of North Carolina Professor of Law Kimberly D. Krawiec explains , the market for eggs has never been particularly free. Industry artificially lowers the amount of compensation women receive for ova, and anticompetitive practices are tolerated under the assumption that ova donors, unlike sperm donors, should be motivated by nurturing, womanly, fuzzy fellow-feeling. As Krawiec notes, no one expects a man to give up his sperm out of some heartwarming love of humanity; men are permitted to seek financial gain. Women who treat their genetic material the same way are met, in Krawiec’s words, with "disgust and revulsion."
So it would presumably be revolting if you and I objected to the fact that New York clinics have an "understanding" about how much area women should be compensated for their ova. Or the fact that the industry-funded American Society for Reproductive Medicine attempts to enforce what it calls a "reasonable" cap on payment, bullying fertility clinics that offer market prices. The clinics then justify the cap as being in the interest of the very women who would receive reduced compensation for her ova. She is being "protected" from the "exploitation" of receiving the actual price of her genetic material. Who profits from underpriced ova? The fertility clinic, which, as Krawiec notes, does not pass the savings on to the prospective mothers. (This excludes donors who contract privately with prospective parents, which, after reading this paper, I strongly suggest doing.)
Krawiec contends that such collusion is quite illegal under the Sherman Act. No one would tolerate this kind of price-fixing in the market for, say, laptops. But fertility clinics are rarely challenged, and very often applauded, by left-wing consumer advocates and right-wing social conservatives trying to shield women from the true price of their ova. "Some egg-market critics," she says, "exhibit a near-obsessive concern that young women, but not young men, will later regret their decisions to genetically parent children." In other words: Men are rational. Women are overemotional puddles of impending regret. Surely the last thing we can be expected to think clearly about is our ability to make small humans. So thank you, American Society for Reproductive Medicine, for so assiduously protecting us from our reckless, muddle-headed, baby-loving instincts. We’ll try not to notice that you’re getting rich doing it.