Kamakahi v. ASRM et al., a putative class action lawsuit filed in 2011, has been making headlines lately. Two former egg donors brought the federal lawsuit, alleging that price guidelines followed by fertility clinics violate antitrust laws by limiting the amount of compensation women can receive for their eggs. The plaintiffs further contend that by agreeing to the guidelines created by the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART), the fertility industry conspired to restrain trade and fix prices. The guidelines presently state that in regard to compensation for egg donors, “sums of $5,000 or more require justification,” and “sums above $10,000 are not appropriate.” The Northern District of California permitted the case to move forward earlier this year, and it will likely reach the trial stage next year. Below is a summary of the general arguments supporting each side of the lawsuit.
Arguments Supporting Kamakahi
• The pricing guidelines set by the ASRM and the SART, where 90% of the U.S.’s fertility clinics are members, constitute illegal price-fixing. Women are deprived of a free market to compensate them for donating their eggs, permitting fertility clinics to generate large profits for themselves.
• Price caps do not exist for sperm donation, which is less risky and less invasive than egg donation.
• The price caps are sexist and prevent women from undertaking risks if they choose to. Seattle University Law professor Julie Shapiro states in this article: “We don’t ban people from cleaning nuclear waste sites because it carries some risk, we allow them to charge more to make up for it.”
Arguments Supporting the ASRM and the SART
• Price caps deter coercion and exploitation.
• The purpose of the pricing guidelines is not to generate profits for fertility clinics, but to prevent potential donors from hiding an unfavorable medical history, or taking medical risks they would otherwise avoid.
• The price caps also serve to restrain individuals from paying more money for eggs from donors with certain physical and mental attributes. University of Texas law and bioethics professor John Robertson states in this article that “it’s a concern about eugenics, that [people] will pay more for eggs from an Ivy League grad.”
Stay tuned to our blog for more updates as this case develops!
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Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.
Photo Credit: Los Angeles Times