Settlement of Class Action Suit Ends Price Guidelines on Egg Donor Fees

Class Action Settlement Ends Price Guidelines for Egg Donor Fees

Parties in a long-standing class action lawsuit against two non-profit organizations serving assisted reproductive technology providers and egg donor agencies finally settled recently in an agreement that some say may result in increased fees for egg donors in the future.

In the suit, filed by two former egg donors in a California federal court in 2011, the plaintiffs accused the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART) and all fertility specialists and egg donor agencies that adhered to pricing guidelines established by those two groups of illegally conspiring to cap the fees paid to egg donors.

According to the lawsuit, in 2000 ASRM’s Ethics Committee issued a report entitled “Financial Incentives in Recruitment of AR Egg Providers,” referred to in the filing as the “2000 Maximum Price Report,” that established a recommended cap on egg donor compensation. The report stated that “at this time sums of $5,000 or more require justification, and sums above $10,000 go beyond what is appropriate.” SART, which is affiliated with and shares an address with ASRM, also instituted the guidelines.

ASRM and SART, on the other hand, contend that the price guidelines were voluntary and were established in order to protect the health and safety of egg donors and protect them from potential exploitation.

But plaintiffs contend that the guidelines harmed rather than helped egg donors. One of the plaintiffs’ claims was that egg donation is considerably more grueling, inconvenient and painful than sperm donation, and therefore limiting egg donor compensation to roughly the same hourly rate as sperm donors, as the ASRM guidelines advised, was unfair. Additionally, over the decade between establishment of the price guidelines and filing of the lawsuit, the compensation guidelines had never been raised, the suit stated.

Although the ASRM guidelines were not mandated, ASRM and SART insisted that their member physicians and donor agencies adhere to the guidelines. Because more than 90% of the nation’s fertility clinics belong to ASRM, according to The Wall Street Journal Law Blog, the result was widespread adherence to the compensation guidelines.

In 2005 SART reached out to independent egg agencies informing them that egg donor agencies serving SART-member clinics were expected to also follow the guidelines and asking them to sign an agreement to that effect in order to be listed on the SART website and included on its referral list. In 2006 SART notified the independent agencies that a failure to comply with the guidelines would result in their being removed from a list of approved donor agencies.

ASRM’s and SART’s promotion of the guidelines and the clinics’ and agencies’ agreement to adhere to them, the suit contended, amounted to  illegal price fixing and a violation of the nation’s anti-trust laws, the suit claimed.

In 2012, reports Law30.com, ASRM and SART filed a motion defending their implementation of the guidelines. Rather than an attempt to obtain donated eggs at a lower cost, the motion stated, the compensation guidelines were intended to protect women who donated eggs from “undue inducement and exploitation.”

The organizations further argued that, based on earlier U.S. Supreme Court rulings, it was inappropriate to apply federal anti-trust laws, which were developed for commercial activities, to a medical practice. The egg donor guidelines, the motion continued, “protect critical health and safety interests of egg donors and recipients” and would “expand the output and availability of donated [eggs] to infertile persons and couples.” Unrestricted compensation, according to the motion, might imply that eggs are property or commodities, thus devaluing human life. “Such payments also could be used to promote the birth of persons with traits deemed socially desirable, which is a form of positive eugenics.”

In February 2015, two additional plaintiffs joined the suit, representing women who planned to donate eggs in future, giving them standing to ask for an injunction against the compensation guidelines, since they would be likely to be impacted by them in the future. In the settlement ASRM agreed to remove from their guidelines the offending language requiring justification for egg donor fees higher than $5,000 and essentially banning compensation over $10,000.

As reported by Law360.com, ASRM will pay $1.5 million toward plaintiffs’ attorney fees and litigation costs and up to $150,000 for notification of egg donors who may qualify as part of the successful class. The settlement awards the four named plaintiffs damages in the amount of $5,000 each. While the thousands of egg donors believed to make up the plaintiff classes did not receive compensation in the settlement, they are free to seek damages for past donations from agencies they feel illegally capped their donor fees, Law360.com reports. However, the settlement releases ASRM from all future claims.

Whether you agree with the plaintiffs or not, the ramifications of the settlement will be far-reaching, potentially ratcheting up costs for future intended parents who depend on donated eggs to have children. It remains to be seen what impact the prospect of higher compensation will have on supply and demand. The settlement reconfirms what we already knew to be true: the rules, regulations and laws governing egg donation and other assisted reproduction technologies are continually in flux on the frontiers of fertility law.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.