Should There Be a Free Market for Human Eggs?

Lawsuit Alleges Price Fixing

Should There Be a Free Market for Human Eggs?
October 7, 2015

Agreements between competitors to establish a collective price or a set of shared rules for establishing pricing are considered to be illegal price fixing under the Sherman Act. A recently filed lawsuit suggests that price-fixing is taking place in a field where some would not even consider price-fixing to be applicable.

The class action lawsuit in question was filed against the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART). The suit filed by two egg donors alleges that the approximately $10,000 cap placed on human egg donors for each donation cycle constitutes illegal price-fixing, and that the donors were denied a true market value for their donated eggs.

The ASRM, a non-profit group composed mostly of doctors who pay to join the organization, was concerned that rising prices for donated eggs could create greater incentive for women to donate their eggs without full consideration of the consequences, or possibly even hide disqualifying health conditions in order to donate. In 2000, ASRM suggested $5,000 per donation cycle as a generally accepted limit without further justification, and that payments over $10,000 are "beyond what is appropriate."

Egg donors receive approximately half of the amount that fertility clinics charge to the recipient. The amount may vary between $5,000 and $10,000 and depends on factors like the profile match and whether the donor has successfully donated in the past.

According to the plaintiffs' lawyer Michael McLellan, the ASRM guideline constitutes "naked, illegal price-fixing." Duke University Law Professor Kimberly Krawiec agrees, noting that in her opinion, the guideline is a per se violation of the Sherman Act —in other words, the legality of the agreement has nothing to do with the amount of damages suffered by the plaintiffs. Professor Krawiec added that if the subject matter were anything except human eggs, "We wouldn't be having this conversation."

This lawsuit is different from many price-fixing suits in one fundamental way. In this case, it is hard to argue that the plaintiffs are benefiting from the price-fixing. In pure economic terms, instituting a cap is not in the best interests of the clinics.

However, the presence of the cap brings up valid questions. What is the value of a human egg and who should be allowed to set that value? On what criteria should the value be set? The values of $5,000 and $10,000 seem to be arbitrarily set by ASRM. Further, the male equivalent of sperm donation does not have a price cap and is a process that involves far less risk to the donor, compared to the invasive process of egg donation.

Another concern is pricing based on selectivity. Is it economically and morally acceptable as a society to allow mothers to shop for eggs from donors with superior qualities such as beauty and intelligence — or exclude based on race or ethnicity? Professor Krawiec dismisses these concerns, saying, "Fertile people have been screening for beauty and intelligence for years and years. It's called dating." Even so, some clinics do not abide by the ASRM price cap and cater to those who can and will pay a premium.

While not all clinics follow the ASRM guideline, most do — over 90% of US clinics, according to the Wall Street Journal. The guidelines are not mandates, but adherence to the guidelines could certainly be interpreted as collusion even though the individual clinics did not directly conspire to fix the prices.

No doubt, there is a motivated market for human eggs. According to SART, in 2013, over 9,500 babies were born as a result of donated eggs.

If the price cap were ruled illegal, it remains to be seen what would happen to donor numbers and the payments that they would receive. It's also possible that lower-income women could be priced completely out of fertility assistance. Either way, the ramifications of the ruling will ripple throughout the entire reproductive services industry, from egg donors to fertility clinics to happy new mothers.

Photo © Tomasz Wyszolmirski

  Conversation   |   32 Comments

Add a Comment

By submitting you agree to our Terms of Service
Steffanie | 10.07.15 @ 17:01
Oh this has so many more repercussions in my mind. It shouldn't even be considered a 'market'.
Elaine | 10.07.15 @ 17:02
90% is a pretty high number following the guidelines. I'm shocked at such a high number actually.
Erin | 10.07.15 @ 17:03
Maybe we could make adoption easier for those that want children and solve several issues at once.
Britt | 10.07.15 @ 17:09
This one is super iffy....
Nancy | 10.07.15 @ 17:11
This is a sad indication of just how greedy our society has become. There isn't already enough profit in harvesting eggs? So much greed.
Chrisitna | 10.07.15 @ 17:12
I'm not sure how to feel about this... we already allow people choosing sperm donation to select from donors with specific characteristics. Why would/should this be any different?
Daniel | 10.07.15 @ 17:13
Seems another highly debatable, controversial topic. I am not sure i like a "market" but I am sure both sides can argue a good point .
Sarah | 10.07.15 @ 17:15
This is much too delicate an issue to even worry about the financial aspect of it.
trish | 10.07.15 @ 17:15
A market? We should start with making the adoption process in the States better, before we start discussing selling human eggs.
Sara | 10.07.15 @ 17:15
Umm this does not sound like a good idea.
Kyle | 10.07.15 @ 17:19
I don't really see a problem with such.
Heather | 10.07.15 @ 17:20
I'm not sure how ethical this is. I sure do find it amazing what people will do for money.
Carla | 10.07.15 @ 17:20
It seems that everything revolves around money these days. I think more people need to look into adoption.
Kamie | 10.07.15 @ 17:21
This is one of those things you never talk about, too many opinions, and too many passionate people.
Angie | 10.07.15 @ 17:24
My thoughts upon reading this were to wonder why we don't make adoption easier for couples. Or to make it more clear to women who want to abort that they have another alternative? Very touchy subject...
Clarissa | 10.07.15 @ 17:27
I understand that women would look to an egg bank in hopes of carrying a child that they could not otherwise produce. I'm unsure of where I stand on this issue.
Kathryn | 10.07.15 @ 17:36
I don't agree with this at all, the fact they call it a market.. As well as we already have mothers in this world who neglect their children..
Wanda Langley | 10.07.15 @ 17:45
Economically that is some high prices to pay. Being morally acceptable I feel is up to each person to decide for themselves.
irene | 10.07.15 @ 17:47
Too creepy for words
Jo Ann | 10.07.15 @ 18:05
This is almost as bad as selling babies. These clinics are preying on people desperate to have a child, and to the egg donors are not really donating eggs if they are selling their eggs. I can see paying medical expenses, but I really have a problem with a recipient having to pay for anything over actual expenses. People are greedy.
Owen | 10.07.15 @ 18:10
I agree with Erin that adoption should be easier, and cheaper. My wife and I are looking into adoption because we can't have children and the costs are unbelievable.
Crystal | 10.07.15 @ 18:11
Ugh. I can't even wrap my head around this. Life, people. We're putting a price on life.
Jonathan | 10.07.15 @ 18:21
It's is a commodity, just like there is a market on bread and milk and gas, kinda hard for there not to be a market ....
gracie | 10.07.15 @ 18:49
Financially I understand the desire to be compensated for a contribution but the end goal here is for couples who can't have a baby to have a chance with such huge costs and payouts it feels like some potential parents may be broke before they ever even get to enjoy their beautiful new baby. With so many children in this world already in need of homes it seems like there should be a better solution.
Bobbie | 10.07.15 @ 18:51
I remember seeing ads for $30,000 for Asian/White egg donors years ago, and I was toying with the idea as I met all the initial requirements in the ad. I am all for free market with supply & demand.
Zanna | 10.07.15 @ 20:04
This is scary stuff. How is this different from being compensated for organ donation? Is the next step compensation for in vitro genetic mods to create donor matches? Organ farming? It's a slippery slope.
Christina | 10.07.15 @ 20:12
What is the value of a human egg and who should be allowed to set that value? That is the big question. What is your life worth?
Debbie | 10.07.15 @ 20:16
In the happy little place in my mind where I keep my empathy and compassion I thought egg donors were doing it out of the kindness of their hearts to help people that can't conceive have the chance to be parents. I assumed they were getting a little payment for their time etc but had no idea they were basically selling to the highest bidder. Greed is an awful thing.
George | 10.07.15 @ 20:19
This is a big issue to get into, There are people who would love to have kids, and there are the ones that have them but don't want them. Why not look more into them not all this.
Rychana | 10.07.15 @ 20:35
This is a complicated situation. I wouldn't want to be the one making that decision.
Beverly | 10.07.15 @ 20:39
Perhaps we should be making adoption more affordable and easier and acceptable. Being able to carry a baby doesn't make you a mother, loving and taking care of the hold does
Ron | 10.07.15 @ 22:33
Yes. Any person owns their own body and can consume any item without telling someone they can. Selling sperm, eggs, testicles, kidneys, bone marrow, etc is up to those negotiating the price. Standards and practices should be established, but by all means allow the transactions.
$commenter.renderDisplayableName() | 11.27.20 @ 05:44