Buying Eggs and Drawing Lines: $$$ and Egg Providers

I’ve been nattering on about this topic for days now.   (Here’s the last post and you can skip back from there if you choose.)   Before I turn to other topics, there’s one more thing I wanted to comment on. 

The American Society for Reproductive Medicine (ASRM) publishes guidelines (not binding) for compensation of egg providers.   It’s worth having a look at them.  (There’s some discussion there as well.)  I find myself wondering if the distinctions drawn make sense. 

In the US it is generally permissible for people to be paid to provide gametes–that is for women and men to be paid to provide eggs and sperm, respectively.   Indeed, it’s a substantial and flourishing business.  

This set the US apart from other countries (Canada and the UK for instance) that do not allow gamete providers to be paid.   Other countries have barred payment in order to prevent the commodification of gametes.   For the moment I want to set aside the payment/no payment debate (which I do think is an interesting and important one and which has come up before).  Instead, I want to focus on how we  pay gamete providers, and particularly egg providers, here in the US.

Here’s one bit of the discussion in the ASRM guidelines I find interesting: 

“Compensation based on a reasonable assessment of the time, inconvenience, and discomfort associated with oocyte retrieval can and should be distinguished from payment for the oocytes themselves.” 

The former is found to be acceptable, the latter is not.   This amounts to accepting compensation of women as service providers (the service being growing and then delivering eggs I suppose) and rejecting the idea that they are vendors of the eggs themselves.   Consistent with this view, there is no payment per egg, but rather payment per cycle.   

As I understand it (and it does help to read that quote in context) the ASRM recommends this form of payment because it is trying to minimize the extent to which paying egg providers amounts to commodification of eggs.   Now as I’ve said, the concerns about commodification are important and worthy of discussion.  These very concerns lead many countries to bar payments to egg providers.  

But it seems to me that once you cross the line and are  paying egg providers, it doesn’t matter that much how you structure the payments.   The idea that you aren’t really commodifying eggs, because you aren’t actually buying the eggs themselves or because you are paying for them in batches seems fanciful, right up there with other doctrines that depend on legal fictions like constructive notice.    Perhaps I’m overly cynical, but does anyone actually accept this distinction as meaningful? 

There’s three other points that occur to me reading the ASRM guidelines.  First is the question of whether you can pay too much for eggs.  This is actually what got me started on this several days ago.  I find the ASRM discussion of it quite unsatisfying.  I won’t repeat myself as you can just go read what I’ve already written if you are interested. 

Second is the ASRM’s insistence that “[c]ompensation should not vary according to . . . the donor’s ethnic or other personal characteristics.”   I’ m not sure this means that all egg providers should be offered the same compensation.   It’s possible that since compensation is to be tied to the time and inconvenience to the provider, a brain surgeon will be entitled to greater payment than a child-care worker.   After all, we do value their time differently.  ( Note am not saying anything about whether we should–just that we do.) 

Here again I do see the concerns that motivate the ASRM–not only commodification but also eugenics could be at play here.   But again, the ASRM’s apparent hope that structuring payment as proposed will deal with this is fanciful.   Consider this article from today’s Wall Street Journal.   I won’t involve myself in the rabbinical debate recounted here, but it is clear that given this state of affairs there will be some specific demand for recognized Jewish egg providers.   It’s well within the realm of possibility that there are not enough of these providers currently in the system.   So what are the alternatives?   The obvious way to encourage more women to provide eggs is to offer greater compensation.  This is the way markets work, after all.   Yet the ASRM says we shouldn’t allow this.   Instead we should–what?  Encourage Orthodox women who are seeking eggs to accept non-Jewish donors?  

I think there’s a really interesting conversation to be had here–one that goes back to the dangers of eugenics and designer babies on the one hand and the desire of many people to have children who are “like” them on the other.   The latter strikes many people as reasonable, the former is rather scary.   The ASRM position–which is that both are equally wrong, I think, doesn’t really help us get at this. 

Third is the unusual nature of consent and the doctor/patient relationship in these cases.   I keep deferring this to another time and will do so yet again.  But notice that when an egg provider goes to a doctor she is not receiving any sort of treatment that is beneficial to her (apart from being remunerative.)  That’s an interesting thing to ponder.  

 

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3 responses to “Buying Eggs and Drawing Lines: $$$ and Egg Providers

  1. Professor Shapiro,

    Initially, thank you for focusing your attention on this topic. It is poorly understood and is more often than not, treated in a very stereotypical light. So it is very refreshing to see someone with your insight discussing these matters in such a thought-provoking manner.

    With respect to your question, I do believe there is a significant and meaningful distinction between compensating an egg donor for her pain, suffering and assumption of the risk and the actual purchase of her eggs. In every egg donation agreement I have ever drafted, the donor receives her full fee regardless of whether or not a single follicle is aspirated. The rationale is that she is being compensated for undergoing the procedure, not for the actual retrieval of any eggs. Hence the concern about commodification is largely eliminated.

    Admittedly it is uncommon for a physician to actually proceed with an aspiration if an ultrasound reveals too few mature follicles. Nevertheless, those situations exist and the donor receives her entire fee much to the disappointment of her Recipient(s). Similarly, if the donor produces 40 eggs, none of which are able to be fertilized, she also receives her full fee.

    It is also important to note the distinction between proceeding with a fresh cycle and obtaining unfertilized frozen eggs. When a Recipient Parent purchases cryopreserved eggs from an egg bank, they typically pay per egg (upwards of $3,000.00). Notably, however, that sum is not paid to the donor, but rather the facility that is banking the eggs. Even in these situations, the egg donor’s fee is the same (hopefully within ASRM guidelines). So whether she produces 3 or 30 eggs that are ultimately frozen, her compensation remains the same — because she is only being paid for the pain, suffering, inconvenience, lost wages and risk that is associated with the donor cycle.

    • Thanks for these details. It’s very helpful to me.

      The point about the provider being paid whether or not viable eggs are produced does seem quite important. That’s clearly in the producer’s interest, as there can be no guarantees of any particular results. But I’m not sure how it avoids the commodification. It seems to me the eggs are still being treated as a commodity that can be bought/sold. It’s just that the pricing is uncertain. It’s a bit like when I join a CSA and I get a box of produce each week–isn’t it? I don’t know what will be in the box and, in the event of something like flooding, I may not even get a box some weeks. But I’ve purchased a share of the harvest and so I take my chances with feast or famine.

      It seems you’re also making a useful distinction between the producer and the cryobank. When the cryobank sells them they are more obviously commodified, and the pricing seems to make that clear–so much per egg. Which leads me to another question–how does the cryobank have them to sell? I assume that now that eggs can be frozen and thawed they are handled somewhat like sperm–banks seek producers and pay them (per cycle?) and then the banks own whatever is produced and proceed to resell it?

      And you’ve lead me to a new question.

  2. I think you have accurately described one of the (many) weaknesses of the ASRM position statement.

    The economic analysis has to change when we replace a request for a blond hair/blue eyed donor with one who is Jewish or Indian.

    How can we satisfy the ASRM guideline when helping a member of a small population subgroup who insists on remaining true to her or his demographic. Strict adherence to the guideline implies a bright line rejection of commodification.

    How does that bright line reflect on an organization controlled by physicians who are individually bound to provide medical assistance to all persons. Seems to challenge the following statement: “May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.”

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