The terminology used to describe women who sell their eggs only makes things more complicated: The medical community doesn’t call them patients; it calls them donors. And egg-donation websites regularly describe the process as the priceless gift of family to a couple in need.
But in nearly all cases, women aren’t gifting their eggs to anyone. They’re undergoing a medical procedure for which they will be compensated. It is, according to proponents of the existing system, a free-market exchange between a willing buyer and seller, not so different from buying and selling a house or a car. Donors, however, often express their personal motivations in a tangle of altruism and money—and the money has proven to be a point of contention among the women who sell their eggs and the people who determine how much they’re worth.
In a case expected to go to trial next year, a group of egg donors have filed a class-action lawsuit against the American Society of Reproductive Medicine, whose guidelines cap egg-donor payments at $10,000. This limit, the plaintiffs argue, constitutes illegal price-fixing, violating antitrust law and free-market principles. The suit’s central question is one of ethics as much as economics: Are donors being paid for their labor, their property, the risk they undertake, or a mixture of all three?
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In the ASRM guidelines, issued in 2007, the organization’s ethics committee considered—and then rejected—a pricing structure based on an outright comparison to sperm donation. If the average payment for sperm donation was $75 for an hour’s worth of work, the committee members reasoned, then a woman paid the same hourly rate should get $4,200 for the 56 hours it typically takes to donate eggs—but “because oocyte donation entails more discomfort, risk, and physical intrusion than sperm donation,” they wrote, “sperm-donor reimbursement rates are reasonably considered to underestimate the amount that is appropriate for women providing oocytes.”
The committee members also argued, however, that the space between too little money and too much is a narrow one. The ideal payment is up to $5,000, the ASRM believes; higher fees “require justification,” while more than $10,000 is always inappropriate. The possibility of more money, the guidelines say, could create an opportunity for donor exploitation in the egg market: Women may provide eggs “in response to financial need,” leading them “to conceal medical information relevant to their own health or that of their biological offspring.”
But according to Wendie Wilson-Miller, the president of an egg-donation agency in Pasadena, California, the price for eggs hasn’t budged in decades. In her experience, she said, donors offered $5,000 to $10,000 rarely protest or ask for more. There are certainly more young women who want to donate than intended parents, she explained, “so that has kept the fees for the majority of egg donors within the suggested cap.”
Nevertheless, there are examples of women who try to bid themselves up in the market, and of donor eggs going for much more than $10,000 (including a handful of anecdotal reports of women earning six figures for their ova)—often a play to entice donors with “desirable” traits. There’s some evidence that Asian women, for example, command a higher price in the U.S. egg market, and agencies may try to recruit college-educated donors by advertising in campus newspapers. In a 2002 essay for The Atlantic, Jessica Cohen described how she responded to an offer for $25,000 in the Yale Daily News, for “a young woman over five feet five, of Jewish heritage, athletic, with a combined SAT score of 1500, and attractive.” (Ultimately, she wrote, the mother-to-be rejected her for looking too “ho-hum.”)
Critics of the current system argue that such tactics prey upon financially strained young women, who may often have too little information about what they’re taking on. Unlike sperm donation, the process of donating eggs is lengthy and highly involved. The transaction typically begins by signing a contract with a donor agency, whose mission is to find young women whose traits—height, hair color, education, athleticism, religion—will match a prospective parent’s criteria. Once a donor is selected from the agency’s database, her medical regimen starts with self-administered daily shots of a drug to suppress her natural cycle, followed by a hormone to stimulate her ovaries. When an in-office ultrasound visit confirms that her eggs are ready, a donor injects herself with another second hormone to trigger ovulation. Several days later, a physician places her under general anesthesia and uses an aspiration needle to retrieve her eggs.
Generally, an intended parent pays a donor whether or not a doctor successfully harvests any eggs, and may also reimburse the donor’s travel and medical expenses. But even with all costs covered, egg donors still take on medical risk: Women can suffer subsequent health problems, most commonly ovarian hyperstimulation syndrome (OHSS), in which the ovaries swell too much, causing fluid to leak into the abdomen and chest. Symptoms include bloating, weight gain, nausea, and—in rare severe cases—blood clots and kidney failure.
The medical anthropologist and filmmaker Diane Tober, whose forthcoming documentary The Perfect Donor explores commercial egg donation, estimates that up to 30 percent of the women she interviewed for the film said they experienced some form of health complication, including varying degrees of OHSS and endometriosis. She worries some agencies may downplay the number of women who develop subsequent health problems to prospective donors.
In October, arguing that egg donation “carries the same risks as other surgical procedures involving anesthesia,” the San Francisco civil-rights lawyer MonaLisa Wallace petitioned the United States Justice Department to crack down on “the illegal egg-trafficking industry.” The current system of donation, she wrote, defied the National Organ Transplant Act of 1984, which forbids the sale of human organs. The law does exempt blood and “reproductive tissue” like eggs and sperm—but Wallace contends that egg donation ought to be considered analogous to bone marrow, which is illegal to sell when it’s extracted through an aspiration needle.
Whether or not eggs ought to legally be considered organs, some donors have found the donation process to be physically painful, emotionally jarring, or both. Over the years, some women have shared stories of regret and of feeling used after egg donation. The Santa Cruz artist Raquel Cool, for example, recalls her own experience skeptically: In 2011, at age 26, Cool—now the co-founder of the advocacy and support group We Are Egg Donors—stumbled on a Craigslist post offering up to $10,000 in exchange for eggs. “The concept of donation wasn’t new to me. I’m an organ and blood donor,” she says. “But the world of egg donation is profit-driven, and I felt more like a vendor than a donor. There seemed to be a lot of double speak. They told me I would be compensated for my ‘time’ and ‘effort’ with a $7,000 honorarium.” The money, she says, creates a power dynamic that’s not often talked about—she knew one woman, for example, who was hesitant to negotiate with her agency for a room at a cleaner, safer hotel. “You’re not really in a financial position to rock the boat,” she said. “You want to be paid.” Her artwork, she explained, reflects her ambivalence about the role money plays in what she calls “the human ovum trade.”
These accounts aren’t universal, however, and there certainly may be a kind of negativity bias at play—those with health complications and strong adverse reactions may simply be more vocal, while women who had positive experiences may feel less of a need to speak out.
In the case of the class-action lawsuit, it’s unclear whether the plaintiffs were actually harmed by the ASRM guidelines, something they must prove under the Sherman Antitrust Act, according to Tripp Monts, a Washington, D.C., lawyer representing the ASRM. (The organization declined to comment directly on egg pricing due to the ongoing litigation.)
“The plaintiffs have to show injury, but the economics of egg donation here are interesting,” Monts said. “When the price of something goes up, supply tends to go up, too. People who weren’t donating at the time might have donated, and some members of this class that were chosen as donors might not have been selected.” In other words, some donors may have actually benefitted from the guidelines.
In January, the United States Tax Court further muddled the already-ambiguous definition of a donor, agreeing with the Internal Revenue Service, that women must pay taxes on the money earned from their eggs. The case in question involved Nichelle Perez, a California woman in her early 20s who had donated eggs twice through an ASRM-registered agency she found online, after signing contracts that promised her a total of $20,000 for her “pain and suffering.” According to court documents, the agency sent a 1099 form to Perez, but, believing that the money wasn’t taxable, she didn’t report the $20,000 on her tax return. The court declared that the agency wasn’t actually paying Perez damages (which are not taxed) for the pain she experienced; rather, it was paying her as an independent contractor for the service she agreed to provide.
The tax court’s recent decision—that the money earned from egg donation is taxable labor income—implies egg donors aren’t selling property. Similarly, the ASRM guidelines take time and effort into account, but still restrict a woman’s earning potential out of fear of exploitation. Both of these decisions seem to make the question more difficult to answer: Is the money for a donor’s eggs, or her services, or her discomfort? It’s virtually impossible to decide how much a woman should be paid for the process, and how open the egg market should be, without confronting the underlying issue of what she’s being paid for in the first place.
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