'
Kamakahi v. ASRM: The Egg Donor Price Fixing Litigation' (USC Law Legal Studies Paper No. 14-3) by Kimberly D. Krawiec
notes that
In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.
Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, the allegations in the case, and antitrust law’s application to the ASRM-SART oocyte donor compensation guidelines. Regardless of outcome, the suit is an important one that could signal a change in public attitudes about the propriety of mixing money with motherhood. It should - and will - be closely watched.
Krawiec comments that
Kamakahi’s suit, despite the hoopla accompanying it, is in many ways unexceptional, alleging a
fairly straightforward violation of the Sherman Act’s prohibition against contracts, conspiracies,
and combinations in restraint of trade. But oocytes are hardly the common stuff of Sherman
Act claims, and the application of federal antitrust law in such a new and unusual setting was
bound to draw substantial attention.
Ensuing discussion of the case has touched on familiar debates surrounding coercion,
commodification, and exploitation. It has also revealed many misconceptions about oocyte
donation, the allegations in the case, and antitrust law’s application to the ASRM-SART oocyte
donor compensation guidelines, some of which I aim to dispel in this article. For example,
ASRM and others have defended the guidelines as a means to ensure low-cost fertility services
for their patients, a contention that, as I will later explain, is flatly at odds with basic economic
theory and evidence. Others, including ASRM representatives, have derided the suit as frivolous,
an allegation that should be put to rest by the court’s recent denial of the defendants’ motion to
dismiss. Although the case is still in the early stages and the outcome remains to be seen, the
complaint is far from frivolous.
