Is It Legal to Fix a Price for a Human Egg? Probably Not, Says Prof. Kimberly Krawiec

LBN previously reported on a federal lawsuit on egg donation. The lawsuit alleges price fixing in the fertility industry. Professor Kimberly Krawiec of the Duke University law school discusses the antitrust aspect of the case in this report.

Prof. Kimberly Krawiec

Prof. Kimberly Krawiec

The lawsuit alleges that trade organization guidelines provided to fertility clinics amount to illegal price fixing. Professor Krawiec believes that the plaintiffs have a good case. She suggests that, if the agreements in question involved setting the prices of anything but human eggs, “We wouldn’t be having this conversation.” The unusual nature of the product involved is the only reason the case has gotten this far.

Professor Krawiec characterizes the price guidelines in this case as a naked price fixing agreement. An arrangement like this would be a per se violation. This means that the agreement would be considered illegal without regard to any damages the plaintiffs suffered as a result of the agreement. The plaintiffs would not be required to prove anything except that there was such an agreement.

A different issue is whether fertility clinics require doctors to have guidelines in order to obtain informed consent from donors. Professor Krawiec believes that there are a variety of protocols in place, including speaking with lawyers and speaking with psychologists, to be sure that donors understand what they are getting into when they agree to become egg donors.

A news story about the lawsuit asked the question, how much is an egg worth? Professor Krawiec suggests that there is a paucity of data on this issue. There are no reporting requirements, so such information as exists is largely anecdotal. There have been a couple of studies, Prof. Krawiec says, but they use numbers that were self-reported. There are some deviations, but most of the prices are in line with the guidelines of the American Society for Reproductive Medicine.

Professor Kimberly D. Krawiec is a law professor at the Duke University school of law. Her recent scholarship addresses organizational misconduct and trade within forbidden or contested markets. These works include “Price and Pretense in The Baby Market,” in Baby Markets: Money, Morals, And The Neopolitics Of Choice (Cambridge University Press, forthcoming 2009); “Sunny Samaritans & Egomaniacs: Price-Fixing in the Gamete Market,” and “Show Me The Money: Making Markets in Forbidden Exchange,” forthcoming in Duke Law School’s Law and Contemporary Problems; and “Altruism and Intermediation in the Market for Babies,”  The Legal Broadcast Network is a featured network of the Sequence Media Group.