If nothing is beyond reach of the law, then we shouldn’t be surprised that the Sherman Antitrust Act is being invoked in a potentially game-changing California case centered on the price of ... human eggs.
Two women who object to the generally accepted $10,000 cap for an egg donation say the market should set the cap, not two professional fertility organizations that dominate donors’ compensation.
If the women win, they will turn the fertility trade upside down. That has big implications for fertility clinics such as the one at Duke Medical Center and some 15 other providers in the Triangle area.
And for women at Duke University, whose eggs have an elite status thanks to their intellectual, physical and other desirable qualities. They are recruited with want ads, just like anything else.
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If you think all this has the whiff of eugenics, don’t be alarmed. As Duke law professor Kimberly Krawiec noted last week in The Wall Street Journal, this has been going on throughout human history – “it’s called dating.”
About 10 percent of American couples are infertile, and it is this minority that supports egg donation, which concentrates in medicine-rich metropolitan areas such as ours.
Virtually all donated eggs are used for in-vitro fertilization, a 37-year-old biotechnology that produces about 9,500 pregnancies a year in the United States.
Legally, there is no cap on what a woman can charge for her eggs. In this respect, the United States is unusual among the world’s nations because it has allowed a market for eggs to thrive.
However, the donor compensation amounts recommended by the American Society for Reproductive Medicine, the alpha male of the egg business, are $5,000 and cap at $10,000. The larger amount must be “justified” by ASRM guidelines.
A young woman who fits the profile can look at those figures and see much of her college education paid for with what, on the surface, presents itself as a fairly straightforward procedure.
The reality, however, is that she does the heavy lifting, particularly with two different hormone treatments, one to stimulate the ovaries, the other to stop ovulation so that an egg can be retrieved. It is an uncomfortable process that extends for weeks.
How the egg is retrieved is best left to technical descriptions such as the one the Duke Fertility Center’s website. Suffice to say, the male whose sperm will be used to fertilize the egg – in a petri dish, not a test tube – has the better end of it.
He gets a Playboy magazine, a glass vial and a small room. A few minutes later, his work is finished.
You might ask, so what’s the big deal here? Isn’t this a process with consent throughout the length of it?
Yes, but some ethicists fear a robust market in eggs because of the potential for coercion and commodification of human life. Eggs have sold for $35,000 (Harvard women) and there are shadowy reports of $100,000 for supermodel eggs.
Indeed, the prospect of a windfall for donating a speck of tissue that otherwise would be discarded by a woman’s body should not be taken lightly. Some women have been rendered infertile by hormone treatments, others have suffered less drastic but lingering side effects.
For that and other medical reasons, ASRM guidelines recommend no more than six donations from a qualified woman.
Beyond the science of egg donation, which is admittedly impressive, lies the new issue of price-fixing. The California women may have hit upon something.
It sounds off-key to haggle over the price of DNA, which is the core of the issue in the California case, but think about this brave new world.
Should the price of an egg be capped at $10,000 by organizations that write the guidelines? Or should the price be determined by what the market will pay?
The Sherman Antitrust Act suggests the latter, and I agree.
This is not the equivalent of Planned Parenthood’s horrific selling of aborted organs and tissue. Egg donation is a voluntary act.
Couples desperate for a pregnancy are the buyers, and a willing donor is the seller. Within the bounds of medical protocol, the transaction need go no further than that.
Bob Wilson lives in southwest Durham.