It is hard to believe that anybody would file a lawsuit against the American Society for Reproductive Medicine (ASRM) for violating anti-trust laws in the first place, but even more incredibly, the ASRM, as reported in early February, decided to settle the case.
Here is what happened: As the principal professional organization representing the infertility field in the U.S., one of the more important functions of the ASRM is to set guidelines for ethical behavior and clinical practice. In that function, over 10 years ago, the ASRM set guidelines in the range of $5,000-10,000 for what it considered to represent appropriate reimbursements for efforts and time of eggs donors.
The lawsuit filed on behalf of four plaintiff donors claimed that, by issuing these guidelines, the ASRM “restricted trade” since, as ASRM members, most IVF centers follow these guidelines, thus depriving egg donors of a free market for their services.
Here is a little background to understand the ASRM action better: Under the U.S. law, and supported by most ethicists, it is illegal and unethical to “sell” body parts, which includes eggs. The law and ethical considerations, however, permit “appropriate reimbursement” for time, expenses and efforts a donor faces. What represents “appropriate reimbursement” was, however, neither defined by law nor was there unanimity until the ASRM stepped in, and asked a committee of experts to define this issue. The consensus reached by the committee of experts was then issued as a “guideline” by the ASRM.
Such guidelines are exactly that; they are not the law, nor are they rules. Physicians may or may not follow them. Indeed, most professional organization that publish guidelines stress that such guidelines should not be rigidly applied to all patients but should be selectively applied, according to each patient’s circumstances.
It, therefore, appears puzzling to us that this lawsuit was not outright dismissed, though we do understand to a degree why the ASRM agreed to a settlement: The settlement was cheaper than a prolonged court battle. Plaintiffs’ lawyers, according to media reports, were paid $1.5 million in fees and costs. And, yes, the four plaintiff donors, each also received $5,000 (it is certainly better to be a lawyer than a plaintiff). In addition, ASRM agreed to remove the recommended payment range from the guideline.
So, if you see egg donor fees increasing in the coming years, you know where it all started: Egg selling is now considered commerce, subject to free market rules!