Setting The Price of Fertility – Article Summary

Setting The Price of Fertility: Egg Donor Compensation Following Kamakahi v. American Society For Reproductive Medicine. Hous. J. Health L. & Policy, B. Sanders, Vol 22, Issue 1, 2022.

This article examines egg donor compensation rates across the United States ten years after egg donors filed a successful class action lawsuit alleging that the American Society of Reproductive Medicine (ASRM) was artificially suppressing compensation rates by requiring its members to adhere to pricing caps. Before the lawsuit, ASRM had guidelines capping egg donor compensation at $5,000 generally and $10,000 under special circumstances. Although the plaintiffs succeeded in having the pricing caps scrapped, as a violation of antitrust law, most donor programs today continue to offer compensation rates in line with the old pricing caps. Analysis of over 500 donor programs across the U.S. and found that compensation has increased marginally since the lawsuit, but most programs still adhere to the old caps. Some clinics have not raised their rates in over ten years, not even adjusting for inflation.

The article suggests that while the price-fixing lawsuit was helpful, it did not eliminate the de-facto compensation cap that occur with many agencies. Price fixing in effect continues with agencies and clinics. This is no longer based only upon explicit, economic agreements among buyers, but more so upon implicit unspoken agreements and efforts to make a moral argument against higher compensation. Considerable research shows that compensation to women for egg donation remains subject to anticompetitive practices. Some of this may be in the form of unwritten policies among buyers.