The Price of Fertility: Egg Donor Compensation in the United States Following Kamakahi v. The American Society for Reproductive Medicine

41 Pages Posted: 14 Dec 2021 Last revised: 2 May 2022

See all articles by Bailey Sanders

Bailey Sanders

United States Court of Appeals for the Eleventh Circuit

Date Written: October 16, 2021

Abstract

Although much ink has been spilled debating whether the United States should permit the sale and purchase of human eggs, fewer scholars have considered how we might encourage more efficient competition in this market. This article considers the market impact of a 2011 price-fixing lawsuit brought on behalf of egg donors in the United States; the plaintiffs argued that the American Society for Reproductive Medicine was artificially suppressing compensation rates by requiring its members to adhere to pricing caps. When the plaintiffs secured the removal of the guidelines, many observers expected compensation rates to increase substantially.

I argue, however, that the removal of the guidelines likely had a limited impact on prices. Considerable scholarship has shown that the market for human eggs is characterized by several anticompetitive practices arising from society’s discomfort with the sale of human eggs. While the lawsuit successfully eliminated one of those anticompetitive practices, it left the others untouched. A priori then, there was little reason to think compensation would increase drastically.

To support my argument, I draw upon an original dataset of compensation rates from over 500 donor programs across the United States. I find that while donor compensation has risen in the decade following the price-fixing lawsuit, most donor programs continue to offer prices in line with the old guidelines. My results suggest that antitrust law, and in particular price-fixing lawsuits, may not be the most effective tool for encouraging competition in the egg donor market.

Suggested Citation

Sanders, Bailey, The Price of Fertility: Egg Donor Compensation in the United States Following Kamakahi v. The American Society for Reproductive Medicine (October 16, 2021). Houston Journal of Health Law and Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3943986 or http://dx.doi.org/10.2139/ssrn.3943986

Bailey Sanders (Contact Author)

United States Court of Appeals for the Eleventh Circuit ( email )

AL
United States

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