Can the free market decide the price of human eggs?

Children, Crime, Family/Kids, News

American couples who are having trouble conceiving children spend more than $5 billion a year on fertility treatments. Of that, $80 million is spent on acquiring donated eggs—a lucrative market.

Not so lucrative, however, for the egg donors themselves: In 2000, the American Society for Reproductive Medicine (ASRM) established guidelines limiting the amount an egg donor can be paid at $10,000. These guidelines are now being challenged in a class action lawsuit by a group of women who call the regulations a form of illegal price fixing.

But taking the cap off egg donations isn’t just a matter of finances. It’s an ethical Pandora’s Box that potentially creates serious health risks for underprivileged women, and might even unleash—for those with the most “desirable” traits—a genetic gold rush, with far-reaching implications for both buyers and sellers.

Why the cap?

The ASRM established the $10,000 cap as a means of discouraging young women—who might otherwise be enticed by big money—from donating eggs without fully understanding the ramifications of their actions.

Compared to sperm donation, egg donation is a complex practice that entails some health risks. It involves a regimen of hormone shots and the invasive removal of the eggs themselves. But why, ask the plaintiffs in the class action suit, should the complexity of egg donation provide a reason for capping the price paid to donors?

Moreover, some clinics do not abide by the industry guidelines. There are instances where the guidelines are outright ignored, and reported cases of women being offered as much as $50,000 for donating eggs are not uncommon. These women can demand a premium because they have a high IQ (as evidenced, for example, by their attending an Ivy League school) or because they possess physical or ethnic features desired by a couple struggling to conceive.

Ethical issues with a free market

Such premiums for potential smarts or desired physical attributes add another ethical dimension to the idea of a free market egg-donor industry: Is it acceptable to open the door to a kind of reverse eugenics, wherein blue-eyed Harvard graduates can demand vast sums for donated eggs, while less educated or minority women seeking to donate their eggs are paid comparatively little?

The sword cuts both ways. Arthur Caplan, head of the Division of Bioethics at New York University, says that, “Egg sale is not egg donation. Opening a free market in human eggs risks increasing bamboozlement of couples with phony eugenic promises of eggs that will result in beautiful geniuses and the risk of exploiting poor women dazzled by money into ignoring risk.”

Arthur Milstein, bioethics professor at the Temple University James E. Beasley School of Law, wrote in an editorial in the National Law Review that “regulations are long overdue” and concludes that “the open selling for profit of genetic material to produce babies is morally and ethically wrong.” One way of sidestepping this kind of ethical time bomb is to attempt to level the playing field with universal price caps.

Gender equality a major contention

A core complaint in the egg-donor antitrust lawsuit focuses on the comparatively loose oversight of the sperm-donor industry. Men are paid on average $75-100 per sperm donation, a quick, rather painless (ahem) process. The industry guidelines establishing the $10,000 cap for egg donation were calculated by multiplying the time men spent donating sperm by the extensive amount of time women spent donating eggs.

This arguably ham-fisted way of determining the maximum value of egg donation has become a rallying cry for women who feel they have been shortchanged. One complaint in the lawsuit reads that “Since the process of donating eggs is far more painful and risky than is the process for donating sperm, a price paid for donor services that does not account for those differences must be artificially low.”

Clearly, the pain, emotional distress, and overall health risks are not calculated in the standardized pricing guidelines of the egg-donor industry. And yet the antitrust lawsuit does not go so far as to tackle the ethical dilemmas posed by a free market fertility industry. Not to mention whether or not the government has the right to regulate women’s bodies in the first place.

Related articles on AvvoStories: