If There is An ART Market, Should It Be A Free Market?

From time to time I’ve discussed the role of payment in ART.   There’s a fundamental debate over the role of money, with some people (and some countries) staking out an anti-commodification position.   By this I mean that they reject the idea of turning reproductive materials into a commodity that can be bought and sold.   Canada takes such a stance and as a result, is in the midst of a sperm shortage.  

By contrast, the US has what I think can fairly be described as a vibrant market for reproductive materials.   By this I mean that you can buy gametes (eggs and sperm) quite easily.   But even in the largely market oriented US, there’s a queasiness about full commodification.   I’ve commented on this before.   In particular, the ASRM (that’s the American Society for Reproductive Medicine, which is the most important professional organization in the field) has guidelines that suggest maximum compensation for those providing eggs.   (This is the topic of the earlier post I linked to.)

Now if there’s a market for eggs and sperm (and it certainly looks like there is in the US) then it seems that setting a maximum price like that might prevent the proper operation of that market.   And now, indeed, there’s an anti-trust suit that asserts just that.   Someone has brought a class action anti-trust suit against the ASRM and some other defendants.   (You can read the actual complaint here.) 

My knowledge of anti-trust law is far from perfect, but I think this is actualy a claim of monopsony.   The idea is that a powerful buyer uses its power to the determiment of sellers.  (You can see this is something like the inverse of ordinary monopoly claims, where a powerful seller extracts concessions/prices from buyers.)   Here the ASRM and the other defendants are the buyers and the plaintiff/sellers are women who are providing their eggs.   But for the actions of the ASRM the market would function to determine the prices the women selilng their eggs would recieve.

I realize the ASRM offers altruistic justifications for the price cap.   This is, however, exactly what I wrote about before and I simply find them unpersuasive.   Paying women less does not make the transactions less degrading or problematic.  It only makes the less remunerative for the women involved.  

Does this ultimately benefit the ASRM?   I don’t know if it actually does.  (I also do not know if it is necessary to establish that it does in order to win the anti-trust lawsuit.)   It at least keeps the cost of one component of ART (eggs) artificially low.  That might make ART more affordable to people (which might increase its use, which would benefit ART providers) or it might mean ART providers get a larger profit margin.  

In any event, it will be worth watching.

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3 responses to “If There is An ART Market, Should It Be A Free Market?

  1. This suit encapsulates for me everything that is wrong in viewing ART as a market. The arguments for a laissez-faire market in eggs and sperm reflect a fundamental return to the Lochner era when the repudiated Liberty of Contract ruled. The women pursuing the freedom to sell their ova based on their perception that they have qualities superior to other ova vendors is also repugnant and elitist. If such a suit wins, then why not another suit from men selling their sperm for equal protection of their self-perceived value? Will we see parents suing the ASRM when their expectations for an Ivy League education for their superior child do not materialize? They payed dearly for ova from the best women at Harvard and Yale, afterall.

    I fail to see why the ASRM could be held liable for recommending guidelines for limits on compensation, based on the findings of their Ethics Committee. The ASRM receives no money from the providers who seek their accreditation nor do they really punish those who don’t follow their guidelines, except in extreme cases like Octomom. How is this price fixing if its voluntary?

    If ART is truly a for-profit business and not a medical practice, then it should relinquish its control of policies and be subject to federal regulations, as any other business. I would welcome that since then we could have laws that would protect the interests of the people, like myself, created through these markets. ART is a family building practice that should be regulated the same way as adoption. Records would no longer be under the arbitrary control of the medical profession and would become subject to the legal rules governing adoption. People conceived through ART would then have a voice in the creation of the legislation and legal instruments concerning our vital interests. Doctors and clinics would no longer have the power to create a separate class of people who have no recourse for remedies that violate our fundamental right to a full ancestry.

    • I’ve only a moment to make a couple of quick points in response to this. I think you could think of the ASRM as an association where the members of the association are entities that would ordinarily compete with each other as buyers. They’re agreeing not to compete, or to limit the competition. Even if the agreement is not enforcable, I think you can see that one could think of it as a restraint on the ordinary competition that would otherwise exist. That’s basically an anti-trust theory, I think.

      I don’t think you’ve got the claim of the women selling eggs quite right, either. I don’t think they assert they are per se entitled to any particular add on because of their characteristics. I think their assertion is that they are entitled to recieve what an ordinarily functioning market will pay them. In other words, if there are buyers willing to pay a premium, the women should recieve the premium. The ASRM should not be discouraging its members from paying it. If there aren’t buyers willing to pay a premium, that’s life in the market. This last point takes care of the claim by men as well–if people want to pay more for sperm, they are entitled to do so, but if no one wants to pay more (or if people place a value on it less than that they place on eggs, because there is greater supply) then that’s just the market. There’s no equal protection claim.

      I don’t say this because I mean practices are good or bad, just to clarify what I think the claims are.

  2. There is so much that is confusing about the industry and much of what makes it hard to understand is the double talk. I don’t think people are selling or vending or donating the object egg and sperm, not at all. What they are being paid to do is conceive a child with a stranger. The question being asked of these women is “will you agree to conceive a child with this person – you do not have to carry or deliver the child someone else will handle that for you” Good looking kids come from good looking mothers and fathers. The reality is that its not an egg she has to consent to create a child with a person she never met she has to agree to that. The more money a person is willing to spend the better quality they are going to get. The reality is rich people will pay $30,000 for a woman that looks just like the wife of the man whose going to father the child, all the better if she’s got an Ivy league diploman. Obviously she’ll make a better baby than the $5000 Barista from Starbucks with a big nose and a heavy brow. Its reality. There may be little to stop the act itself. There would always be back door payments to get better quality babies. What they can’t be paid for is their parental rights so the walking away part, she has to abandon them on her own. freely I think she should have to sign a contract with her name on it so that the people raising the baby have a contract with her and not the the doctor, thats just ridiculous to me. Also I think it should be done in court so there is no question she relinquished control and consented to the whole thing,
    Excuse me I almost forgot who I was for a second…Blah blah put it on the birth certificate happy face thumbs up etc. etc.

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