Category Archives: Egg markets

Gifts Versus Markets or Gifts Within Markets?

I’ll be giving a public lecture tonight at Washington & Lee University, as part of the Mudd Center for Ethics 2016-17 Speaker Series on Markets and Morals. The talk begins at 5:00 pm in Northen Auditorium, Leyburn Library and is free and open to the public. I’m honored to be included as a part of this great lineup of speakers, which includes Peter Singer, who discussed closely related issues. Singer’s talk, Permitting the Sale of Meat but not Kidneys or Sex? Some Questions about Markets and Morals, is available by video here.

Hope to see some of you there!

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The Moral Limits Of Free Markets In Boulder

cwctp.poster.freemarkets.final.400On Monday, I’ll be at CU Boulder’s Center For Western Civilization, Thought, & Policy, along with Jason Brennan (Associate Professor of Strategy, Economics, Ethics & Public Policy, Georgetown University) and Margaret Jane Radin (Michigan Law, Toronto Law) to discuss and debate the moral limits of free markets.

The event is free and open to the public, and I’ve copied the event information below. Although I’ll be back after the event with updates on the substance, I expect that Jason will take the position, consistent with his book, Markets Without Limits, that “if you may do it for free, you may do it for money.” I imagine that Peggy, consistent with her book, Contested Commodities, will argue that there should be some limits on markets, when necessary to protect nonmarket ideals important to personhood.

I plan to leave the normative debate to those two and take a more descriptive approach: regardless of whether or not market transactions actually degrade relationships and values, most people continue to believe that they do, at least in certain contexts. As a result, market advocates need to account for, and even accommodate, those concerns if the market is to exist at all.

As I explain in a piece I just posted to SSRN:

Students of markets from all disciplines are increasingly turning their attention to the cultural and psychological factors that affect market structure. In traditionally taboo markets, of which reproduction surely is one, those factors include cultural understandings of the moral limits of markets and our collective level of comfort with fully commodifying and subjecting traditionally sacred items and activities to the marketplace.

While it is easy to dismiss these cultural understandings as romantic, silly, or delusional, this severely underestimates their importance, not just to society, but to the market itself. By reframing traditionally unacceptable behavior as a more palatable and familiar transaction, society is able to accept a market that is otherwise socially problematic or even repulsive. Market architects ignore these cultural understandings–and, in particular, societal conceptions of the ethical limits of markets–at their peril. In a world unwilling to embrace the sale of female reproductive capacity for merely a price, the “priceless gift” of egg donation allows a market to flourish that otherwise might stagnate under the weight of social disapproval.


 

The Moral Limits of Free Markets (4/4/16)

The “Western Civ Dialogue” series presents:

The Moral Limits of Free Markets

Monday, April 4, 2016

4 p.m. to 5:30 p.m.

British and Irish Studies Room

Norlin Library – 5th Floor

University of Colorado Boulder

Free and open to the public.

If you may do it for free, may you do it for cash? For instance, may you buy and sell votes? How about buying and selling kidneys? Or buying and selling children? What should be off-limits to the market economy? Or do genuinely free markets permit everything? Scholars representing a wide range of views discuss the issues.

Featuring:

Jason Brennan, Associate Professor of Strategy, Economics, Ethics & Public Policy, Georgetown University

Margaret Jane Radin, Professor of Law, Emerita, University of Michigan Law School & Distinguished Research Scholar, University of Toronto Faculty of Law

Kimberly Krawiec, Professor of Law, Duke University Law School

 

Sponsored by the:

Center for Western Civilization, Thought and Policy (CWCTP)

http://www.colorado.edu/cwctp/

 

Co-sponsored by the:

Center for Values and Social Policy

http://www.colorado.edu/philosophy/center/

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Egg Donors Get Pay Limits Axed With Antitrust Settlement

From Law360:

Egg Donors Get Pay Limits Axed With Antitrust Settlement
By Kelly Knaub

Law360, New York (February 1, 2016, 7:01 PM ET) — A class of human-egg donors who allege the American Society for Reproductive Medicine violated antitrust laws by capping compensation to donors asked a California federal court Friday to approve a settlement requiring the organization to remove the compensation guideline, calling the agreement an “excellent resolution” of the case.

Under the proposed settlement, ASRM will remove language stipulating that “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate,” effectively benefiting all women who donate eggs in the future.

. . .

In addition, ASRM will pay a total of $1.5 million under the agreement to compensate the plaintiffs’ counsel for fees and costs incurred in in the litigation, as well as up to $150,000 to cover the costs of notice to the class.

They could have saved that $1.5 million dollars in legal fees if they had listened to me about this back in 2009.  🙂

Related posts:

The NY Times Weighs In On Egg Donor Price Fixing

If You Want A Market, Have A Market . . . Otherwise

Feeble Even By Normal Litigation Standards

Egg Donor Antitrust Suit In Today’s WSJ

Sunny Samaritans’ Suit Survives

ASRM Seeks Dismissal of Egg Donor Suit

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

The Value of Smart Eggs

 

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BioNews: Egg donors to challenge US payment rules in court

From BioNews:

Egg donors are suing the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) in a class-action lawsuit for setting a ‘price cap’ on compensation to egg donors. . . .

The guidelines, which have not been adjusted since they were first established by the ASRM in 2000, advise that reimbursement above $5000 for egg donation requires ‘justification’ and that compensation above $10,000 is ‘beyond what is appropriate’. . . .

Despite these guidelines, compensation for donor eggs in the USA regularly goes up to $75,000 dollars and there are even reports of six-figure sums being paid out.

Law professor Kimberly Krawiec from Duke University, North Carolina, argued that the guidelines are a clear violation of the legislation against price-capping, and that if the subject had been anything except human eggs ‘we wouldn’t be having this conversation’.

In contrast, Professor of Bioethics Arthur Caplan at New York University said: ‘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.’

I’ve seen no evidence that egg donor compensation “regularly” exceeds $75,000 in the US, though there may have been isolated cases. Admittedly, reliable data on egg donor compensation is pretty scarce, but the studies that are out there tend to suggest that most payments are under the $10,000 guidelines. See my earlier posts here and here, for example.

But I’m happy to see Art Caplan protecting young women and intended parents from the coercive effects of money, which apparently only begin at the $10,000 mark.

Related Posts:

The NY Times Weighs In On Egg Donor Price Fixing

If You Want A Market, Have A Market . . . Otherwise

Feeble Even By Normal Litigation Standards

Egg Donor Antitrust Suit In Today’s WSJ

Sunny Samaritans’ Suit Survives

ASRM Seeks Dismissal of Egg Donor Suit

Kamakahi v. ASRM et al. — Updates

Politics And Profits in The Egg Business (When Sunny Samaritans Sue, IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

When Sunny Samaritans Sue

The Value of Smart Eggs

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The NY Times Weighs In On Egg Donor Price Fixing

21wed2-blog427And gets it right.

As I mentioned a few days ago, the NY Times recently published a much-read piece about Kamakahi v. ASRM, the egg donor class action that accuses the American Society for Reproductive Medicine with illegally capping compensation to oocyte donors in violation of US antitrust law. Today, they followed up with an editorial that, perhaps amazingly, given the heated rhetoric surrounding the case, correctly sides with the egg donors in the litigation.

From the editorial board’s letter:

Guidelines issued by the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology suggest that paying a woman more than $10,000 for her eggs is “beyond what is appropriate” and even paying $5,000 or more requires “justification.”

A vast majority of the nation’s fertility clinics follow these guidelines. The stated rationale behind them is to avoid offering so much money that donors, especially those who are often young and poor, will rush to contribute their eggs without considering the risks.

This payment system is unfair. However well-intentioned, it favors the fertility clinics. . . . Meanwhile, it shortchanges the egg donors, whose wishes are ignored in the equation. And if there are indeed risks, they can be addressed and mitigated by the clinics and the doctors, who can strengthen their screening and counseling procedures and provide more information.

Yep.

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If You Want A Market, Have A Market . . . Otherwise

Eggs Donors Cartoon 2By now most readers will have seen the article in Friday’s New York Times discussing Kamakahi v. ASRM, the egg donor price fixing litigation that I’ve blogged about numerous times here. (See links below). I’ll be back later with more to say about the article, but for now wanted to highlight the following quote from Debora Spar, the president of Barnard College and the author of The Baby Business, an excellent book on the assisted reproduction industry. Says Spar:

Our whole system makes no sense . . .We cap the price because of the yuck factor of commodifying human eggs, when we should either say, ‘Egg-selling is bad and we forbid it,’ as some countries do, or ‘Egg-selling is O.K., and the horse is out of the barn, but we’re going to regulate the market for safety.’

I couldn’t agree more and make a similar point in a recent piece in the Journal of Applied Philosophy (the published piece is gated, but you can access an earlier draft here):

ASRM and SART also defend the compensation guidelines on the grounds that they prevent the undue influence and exploitation of egg donors. . . .

It is worth noting at the outset that many countries ban payments to egg donors entirely, due precisely to concerns such as these. Regardless of one’s views on the ultimate wisdom of such bans, they do possess a certain logic — if the lure of payment will cause women to donate who otherwise would not, then one possible solution is to ban payments. An attempt to address inducement concerns through price caps, however, is an entirely different matter.

Happy reading!

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Medical Research Subjects: Guinea Pigs, Laborers, Or Altruists?

Guinea pig wearing nurses hat

Guinea pig wearing nurses hat

Cari Romm has a great article in The Atlantic, The Life of a Professional Guinea Pig: What It’s Like To Earn A Living As A Research Subject In Clinical Trials. (HT: Jamie Boyle)

I’ve blogged before about my course on Taboo Trades & Forbidden Markets (see here for course resources, including reading lists, blog posts, and the like) and for the past several years have included readings about the market for professional research subjects. Last year, for example, I assigned this New Yorker article, Guinea Pigging, by Carl Elliott, together with More Money, More Problems? Can High Pay be Coercive and Repugnant?, by Sandro Ambuehl, Muriel Niederle, and Alvin E. Roth, and Martha Nussbaum’s, Taking Money For Bodily Services, in SEX AND SOCIAL JUSTICE.

I’ll certainly be adding Romm’s article into the mix in future years. The piece hits on two points that I have tried to make in various works on taboo trades, particularly human egg markets. The first is that attempts to keep payments low, out of coercion or other fears, does not necessarily result in altruistic donors. Instead, the result is often that donors with higher opportunity costs and better income opportunities exit the market, leaving behind “donors” who are poorer, potentially less educated, and more in need of money to meet basic needs. In other words, precisely the donors least likely to thoughtfully weigh the risks of donation against the monetary benefits and most likely to succumb to the “coercive” effects of money, because they have fewer income opportunities from which to choose. Second, pretending that donors are altruists, rather than sellers or wage earners, deprives them of legal protections and, sometimes, legal obligations.

'You mean you're going to do a test on a guinea pig now?'

‘You mean you’re going to do a test on a guinea pig now?’

I discuss both of these issues in a recent article in the Journal of Applied Philosophy (the article is gated, but you can access an earlier draft on SSRN). As I state there:

The provision of human oocytes for third party reproduction (“egg donation”) has long been contested territory, sitting uncomfortably between the world of gift exchange and its crass cousin, the marketplace. . . .

[Yet] egg donation is a thriving and profitable industry, a substantial source of income for many young women, and the most important purchase that intended parents will ever make. In other words, it is a market, and well-established social policies seek to address a variety of concerns with respect to all markets. Among other goals, the legal regime governing markets seeks to control collusive economic activity and rationally tax income-generating activities. Those goals are in direct conflict with the [litigation discussed here, namely collusive price controls and challenges to ambiguous and inconsistent tax policies]. . . .

Together, these cases demonstrate the difficulty of achieving in practice what has seemed so appealing to many in the abstract – a mechanism that harnesses the market’s incentivizing forces while at the same time preserving ideals of reproduction and parenthood as outside of the marketplace. . . . A close examination of these cases also provides lessons on the dangers of romanticizing what is, for better or worse, a highly profitable and robust industry.

The Atlantic, quoting Carl Elliot, sums up these issues well in the context of medical research subjects:

“Under the basic ethics guidelines … research subjects are treated as if they are altruistic volunteers,” he [Carl Elliot] told me. The issue of payment for research participation is an especially complicated one, and the pretense of altruism acts as a hedge against accusations of unethical behavior. “You have to ask: Who has a month or three weeks to just check in to a trial site or live there for that amount of time?” he said. “Homeless people, undocumented people, people who are either temporarily or long-term unemployed, people who are out of jail who can’t get regular work.” Paying members of vulnerable groups to put experimental drugs in their bodies can seem dangerously close to coercion.

But treating money as an afterthought rather than the main motivator also means that guinea pigs aren’t considered employees. “It’s work, but it offers none of the protections of work,” Elliott said. “You don’t have the right to minimum wage, you don’t have the right to unionize, you don’t have disability payments, you don’t even have regular health and safety inspections.”

Read the full Atlantic article here. And definitely read my full article on egg donation here. 🙂

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“Feeble Even By Normal Litigation Standards”

It seems that Ashby Jones opened the floodgates with his recent Wall Street Journal article on Kamakahi v. ASRM, the antitrust suit challenging the ethical guidelines on egg donor compensation promulgated by the American Society For Reproductive Medicine as an illegal price fixing agreement in violation of the Sherman Act. Since that article appeared, other news sources have picked up on the suit.

At Slate, for example, Eric Posner argues that the plaintiffs are not donors, but sellers, and deserve a fair price for their services. Says Posner: “Price-fixers always offer an excuse for their behavior, but these arguments [raised by the defense] are feeble even by normal litigation standards.”

And yesterday, the Legal Broadcast Network ran a video on the case, in which I argue that, were it not for the unusual nature of the product/service at issue, there would be little question that the pricing guidelines were an illegal, per se violation of the Sherman Act. The print version is here, but you can watch the video below.

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Egg Donor Antitrust Suit In Today’s WSJ

P1-BU421_DONORE_9U_20150726180007In today’s WSJ, Ashby Jones discusses Kamakahi v. ASRM, the egg donor antitrust suit that I’ve written about on numerous occasions (see links below). From the text:

How much is a human egg worth? The question is at the heart of a federal lawsuit brought by two women who provided eggs to couples struggling with infertility.

The women claim the price guidelines adopted by fertility clinics nationwide have artificially suppressed the amount they can get for their eggs, in violation of federal antitrust laws.

The industry groups behind the price guidance—which discourages payments above $10,000 per egg-donation cycle—say caps are needed to prevent coercion and exploitation in the egg-donation process.

But the plaintiffs say the guidelines amount to an illegal conspiracy to set prices in violation of antitrust laws. The conspiracy, they argue in court papers, has deprived women nationwide a free market in which to sell their eggs, and enabled fertility clinics to “reap anticompetitive profits for themselves.”

One thing I did not previously know is that, according to the article, the court will hear motions later this summer on certifying an expanded class that would include not only past donors (as is currently the case) but also potential future donors. It wasn’t clear to me from the article what sort of relief would be sought on behalf of these future donors. Perhaps injunctive relief?   I’ll have to leave it to the Civ Pro experts to speculate.

In any event, my fifteen minutes of fame come at the end of the article:

Kimberly Krawiec, a law professor at Duke University who has studied the egg-donor industry, played down such concerns, adding that mothers-to-be generally aren’t looking to build a genetically superior child. Ms. Krawiec said she had little issue with couples paying more for eggs from women with, say, high SAT scores. “Fertile people have been screening for beauty and intelligence for years and years,” she said. “It’s called dating.”

The ASRM defense that the price caps are needed to prevent differential payments for particular traits is one I address in more depth in a forthcoming Journal of Applied Philosophy article. I’ll be back to say more about that in the coming days.

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Baby Markets Roundtable . . . IX?

I recently returned from the annual “Baby Markets” roundtable, which this year was hosted at Harvard by Glenn Cohen. Apparently this is the 9th iteration of the roundtable, which seems impossible to me, since that means I’ve been working on reproductive markets for 10 years and I can’t possibly be that old or that boring.

I haven’t been to the roundtable the past couple of years, because I’ve mostly been working on issues surrounding organ donation and not so much on reproductive markets. But this past year I have been working on a couple of papers related to the ongoing egg donor antitrust litigation that I’ve blogged about here before, as well as the “taxing eggs” decision, which was the subject of an earlier mini-symposium at The Faculty Lounge.

In brief, I try to tie the legal difficulties these cases present to cultural notions of egg donation as incompletely commodified. That is, regardless of the economic realities of the transaction, egg donation is framed by market participants (including donors, intended parents, and fertility professionals) as not really gift, not really market, but a little of each – a concept that works fairly well as a cultural account, but not so well with an antitrust and tax regime that is (properly, I argue) attuned to egg donation’s status as a market exchange. I hope to be back later when I have more time to discuss these ideas more fully with readers.

But, it was great to catch up with old roundtable friends like Judith Daar, Martha Ertman, Kim Mutcherson, and others. And to catch up with folks I haven’t seen there before, like John Robertson, Reva Siegel, and Kim Buchanan. I also enjoyed finally meeting folks who I know from Facebook or reading their work, but didn’t really know in person, like Gaia Bernstein and Jody Madeira. I’m looking forward to Baby Markets X, which apparently will be a big event at UC Irvine next year.

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