A federal class-action lawsuit questions compensation guidelines in a largely unregulated industry and seeks to increase egg donors’ negotiating power.
On their websites, next to glossy pictures of babies, some fertility clinics and egg-donor agencies refer to eggs as a “priceless gift” from caring young women who want to help people with fertility problems. There is a price tag for eggs, though, and it is the subject of a legal battle.
In a federal lawsuit, a group of women is challenging industry guidelines that say it is “inappropriate” to pay a woman more than $10,000 for her eggs. The women say the $10,000 limit amounts to illegal price-fixing and note there is no price restriction on the sale of human sperm. A federal judge has certified the claim as a class action, which will most likely go to trial next year.
The guidelines do not have the force of law, though they have been widely followed. But demand for eggs has increased and put pressure on their price. So some high-end fertility clinics and egg-donor agencies are ignoring the guidelines and paying far more — on rare occasions six figures — while donors are shopping around to get the best price.
The case could shake up the $80 million egg-donor market by spurring more negotiation. It is a reminder that egg donation is a big business, though one with many more inherent ethical issues than others.
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“The lawsuit is raising awareness of the commodification of the whole thing, and that’s good,” said Sierra Poulson, 28, a lawyer in Nebraska not involved with the case, and a founder of the online forum We Are Egg Donors. “The guidelines are skewed toward the intended parents, toward the industry making more money and business,” Poulson said. “We’re in America; the market would take care of itself, without guidelines.”
Poulson, a three-time donor, is an example of how the market works. She was paid $3,000 for each of her first two donations, in Kansas, but $10,000 in Chicago for the last. “The third time I donated, the only reason was for the money,” she said.
Rise in demand
As women wait longer to start families and find their fertility has waned, the demand for eggs from young donors — typically, donors are in their 20s — has risen rapidly. Women trying to get pregnant, along with surrogates hired by gay men to carry their children, used donor eggs in nearly 20,000 monthly cycles in 2012, compared with fewer than 12,000 a decade earlier, according to the Centers for Disease Control and Prevention (CDC), which collects statistics on assisted reproduction.
While many countries limit egg donation and the compensation that is allowed, egg donation is essentially unregulated in the United States. But in 2000, the American Society for Reproductive Medicine established the guidelines for how much women should be paid.
The society said compensation of more than $5,000 requires “justification,” and more than $10,000 is “beyond what is appropriate.” The amounts have never been adjusted.
The society argues that capping the price ensures that low-income women are not drawn to donate by a huge payout without considering how it may affect their lives.
“If the compensation became too high, there is a concern that it might be incentive for donors to lie about their medical history,” said Tripp Monts, a lawyer representing the society.
He also took issue with the idea that the guidelines represented price-fixing. “The guidelines are just that, guidelines,” he said. “They’re not a cap as has been portrayed.”
The question of compensation for eggs raises difficult exploitation questions, of low-income young women by affluent older women whose own eggs are past their prime, and by gay men, in their quest for children. Many cancer survivors also need eggs after treatment leaves them infertile.
Reflecting a distaste in the United States for the idea of selling body parts, the women providing the eggs are referred to as donors, and at least theoretically are paid not for their eggs, but for the inconvenience, discomfort and health risks involved in the process of harvesting. That process requires weeks of hormone injections to stimulate the ovaries, and endurance of ultrasounds and surgery.
Many egg donors and women’s-health advocates say there is a pressing need for more research on whether the high doses of hormones that women must take increase the risk of cancer or infertility, especially among repeat donors. Some advocate the creation of a database to track donors’ health history; others suggest urging them to freeze some eggs to use themselves should they later develop cancer or become infertile.
But it is intrinsic to the process that doctors, clinics and agencies who recruit donors and harvest the eggs focus less on worrying about the donor’s interests than on getting what the recipients paid for.
“Our whole system makes no sense,” said Debora Spar, the president of Barnard College in New York and author of a book on the assisted-reproduction industry. “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 OK, and the horse is out of the barn, but we’re going to regulate the market for safety.’ ”
Most first-time donors in California, New York and Chicago are paid $4,000 to $7,000, more than in other parts of the country. (The price generally includes all eggs harvested in a cycle.) The pay can rise significantly for repeat donors whose first set of eggs led to a birth. But donors are becoming more savvy in seeking compensation. Mindful of the booming market, more fertility clinics have started their own in-house egg programs.
“The market has exploded and become much more competitive, and you see the same donor listed on several different sites,” said Lesa Slaughter, a reproductive lawyer in Los Angeles.
Some high-end fertility clinics and egg-donor agencies ignore the guidelines and pay more for eggs from particularly attractive donors: actresses, models, Asians, Jewish women and Ivy League students with high SAT scores.
“For us, a first-time Asian donor might get $10,000 to $25,000, and a repeat donor might get to $40,000, occasionally $50,000,” said Darlene Pinkerton, a founder of A Perfect Match, in Southern California. “Maybe twice, it’s been $75,000. It’s gotten much more competitive now that there’s a new agency opening almost every week.”
Andrew Vorzimer, a lawyer in Woodland Hills, Calif., who specializes in reproductive law and formerly owned an egg-donation business, said, “I’ve drafted contracts for egg donors in the six figures. The guidelines are a joke.”
Vorzimer said he believed some guidelines were necessary, to prevent exploitation of younger women and to prevent prices from rising so high that only the richest families would have access to donor eggs.
Sperm donors typically receive $75 to $100 for their comparatively carefree contribution: There is no shortage of attractive, educated donors. According to the complaint in the egg donors’ lawsuit, Kamahaki v. American Society for Reproductive Medicine, the women’s pay rates were originally set by taking the sperm-donor compensation, calculating the amount of time men had to spend in a medical setting, and multiplying it by the much longer time women spent when donating eggs.
“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,” the complaint said.
Neither the egg donors named as plaintiffs in the case nor their lawyers would discuss the case, which could affect potentially thousands of women who have donated eggs since April 2007 at any fertility clinic or egg-donation business that followed the guidelines.
Maggie Eastman, 34, of Puyallup, donated her eggs 10 times before being diagnosed with metastatic breast cancer in January 2014. Each time a doctor called requesting her eggs, she said, she felt uncomfortable turning down someone who needed her help to have a baby — and, she said, no one ever told her that six donations was the recommended limit.
Eastman said she was paid $1,600 the first time she donated, and $2,000 each time after.
“It paid off my undergraduate-student loans, almost,’’ she said. “I didn’t know how much other people were getting. There was no one to ask.’’