We have laws that limit or outright ban the commodification of human tissue transfers and services provided by surrogates. But it appears that we are of two different minds on these practices.

In 2011, two women who provided eggs to couples struggling with infertility sued American Society for Reproductive Medicine (ASRM) in federal court claiming that the group artificially suppressed the compensation that the donors could receive.

The ASRM is the nation’s leading professional association of fertility specialists. It has established guidelines that are followed by the majority of fertility clinics.

The guidelines were published in 2007 and provide that, “[a]lthough there is no consensus on the precise payment that oocyte donors should receive, at this time sums of $5,000 or more require justification and sums above $10,000 are not appropriate.”

These guidelines were intended to prevent coercion and exploitation in the egg-donation process. The amounts were intended to provide reimbursement for expenses and other costs associated with the donation procedure.

The report observed:

Both monetary compensation and oocyte sharing create the possibility of undue inducement and exploitation in the oocyte donation process. Women may agree to provide oocytes in response to financial need. High payments could lead some prospective donors to conceal medical information relevant to their own health or that of their biologic offspring. … Financial compensation also could be challenged on grounds that it conflicts with the prevailing belief that gametes should not become products bought and sold in the marketplace.

The two women plaintiffs claimed the ASRM guidelines amount to an illegal conspiracy to set prices in violation of antitrust laws. They were later joined in the lawsuit by two other women.  

On February 3, 2016, the Wall Street Journal Law Blog reported that the parties had reached a settlement in which the ASRM agreed to delete provisions in its guidelines concerning egg donor compensation and to pay each of the four women $5,000. The ASRM also agreed to pay plaintiffs’ lawyers $1.5 million in fees and costs.

So, it seems that it is acceptable for a woman to sell her eggs to the highest bidder. Indeed, it is illegal to even suggest that there might be an ethical or medical reason to impede the unfettered operation of the free market system in determining the appropriate compensation for her services.

Oh, and wait, we’re no longer talking about reasonable reimbursement for expenses and other costs associated with the donation procedure. Now, we are talking about compensation based on other factors that are unique to the donor. Compensation based on the “specific physical, cultural, or other characteristics and intellectual or other abilities” of the donor. The very concerns that prompted the promulgation of the ASRM guidelines.

At the same time, it is illegal in at least five states (DC, MI, NJ, NY, and WA) for the same woman to be compensated for serving as a surrogate for an infertile couple. Many states regulate the practice, including imposing limitations on compensation.  Others, like North Carolina, have no law addressing the practice at all. Only seven (CA, CT, DE, ME, NH, NV, OR, and RI) have fully developed bodies of law with relatively predictable results.

As is often the case, the scientists and physicians are decades ahead of the legislatures and lawyers. As a result, law is made piecemeal without any guiding purpose or plan. That usually ends badly or at least with inconsistent results.