Tag Archives: Kamakahi v. ASRM

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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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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Egg Donors With Class

Yesterday, as expected, the US District Court for the Northern District of California certified a class of human egg donors in Kamakahi v. ASRM on the question of whether an agreement among members of the American Society for Reproductive Medicine to cap compensation to those donors violated the Sherman Act. The Court declined to certify the class on the issue of damages, reserving the question of how to determine that issue until after adjudication on the antitrust violation.

From the Order:

The class defined as follows is certified to determine whether the Guidelines‘ restriction of “appropriate” compensation to $5,000, or $10,000 with justification, violates the Sherman Act, with the method of adjudicating damages and injury-in-fact to be determined if Plaintiffs prevail in showing a Sherman Act violation:

All women who sold human egg donor services for the purpose of supplying human eggs to be used for assisted fertility and reproductive purposes (“AR Eggs”) within the United States and its territories at any time during the time period from April 12, 2007 to the present (the “Class Period”) to or through:

  1. any clinic that was, at the time of the donation, a member of Society for Assisted Reproductive Technology (“SART”) and thereby agreed to follow the Maximum Price Rules (as that term is defined in Plaintiffs‘ Consolidated Amended Complaint) set forth by SART and the American Society for Reproductive Medicine (“ASRM”); and/or

  2. any AR Egg Agency that was, at the time of the donation, agreeing to follow the Maximum Price Rules.

The Court’s order is available online here: Kamakahi classcert

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Court Nearing Certification of Egg Donor Antitrust Class Action

From Law360 (subscription or Lexis access required):

Human Egg Donors Near Cert. Of Antitrust Class In Pay Row

By Beth Winegarner

Law360, San Francisco (January 23, 2015, 7:26 PM ET) — A California federal judge said Friday he would likely certify a class of human egg donors on the issue of whether an agreement among members of the American Society for Reproductive Medicine to cap compensation to those donors violated the Sherman Act.

I’ve blogged about this suit (and, prior to the suit, argued that there should be one) on numerous occasions. Related links are below.

 

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HT: Barak Richman

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