Abstract

The Wall Street Journal article “Putting a Price on a Human Egg” triggered extensive media coverage of a rather unusual challenge to payments made to women providing ova for use in assisted reproduction. In Kamakahi v. American Society for Reproductive Medicine and Society for Assisted Reproductive Technologies, plaintiffs claim that ASRM and SART policies adopting limits on such payments violate the federal antitrust prohibition against price fixing.In 2007, an ASRM Ethics Committee Report, confirming a 2000 report, asserted that, “[a]lthough there is no consensus on the precise payment that oocyte donors should receive, at this time sums of $5,000 or more require justification and sums above $10,000 are not appropriate.” SART is an affiliate organization of ASRM and counts as its members 90 percent of the clinics providing assisted reproductive technologies in the United States. SART requires that its members “[adhere] to all ASRM/SART Guidelines including ethical, practice, advertising, and laboratory.” The plaintiffs in Kamakahi claim that the agreement among SART members to abide by the ASRM policy restricts competition among agencies procuring oocytes and produces lower payments than women would otherwise be able to negotiate. It is through the requirement that SART members adhere to ASRM ethical guidelines that ethics goes to market and encounters antitrust law. Ethicists continue to debate whether payment for oocytes inappropriately commodifies the human body, and ASRM policy consistently refers to their procurement as the “donation process” and to women who participate as “donors.” Nevertheless, in the context of antitrust law, the procurement of oocytes is a business and clearly falls within the reach of antitrust restrictions on business conduct