Sunny Samaritans and egomaniacs: Price-fixing in the gamete market

Law and Contemporary Problems

Volumn 72, Issue 3, 2009, Pages 59-90

  Krawiec, Kimberly D ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 77951990599     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (178)

1. See generally Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE L. REV 203 (2008) (discussing modern growth in various reproductive markets).
2. CTRS. For Disease Control, U.S. Dep't of Health & Human Servs., 2006 Assisted Reproductive Technology Success Rates 13, 56-59 (Nov. 2008) (providing data on assisted reproductive technology (ART) births and ART births using donor eggs).
3. The traditional secrecy and lack of reporting requirements regarding births from sperm donation result in highly variable estimates. For example, although a 1988 Congressional Report puts the number at 30,000 births per year, other estimates are as low as 4000 to 5000 births per year. Compare Office of Tech. Assessment, U.S. Cong., Artificial Insemination Practice in the United States: Summary OF A 1987 Survey-Background PAPER 3 (1988) ("The survey estimates that 172,000 women underwent artificial insemination in 1986-87, at an average cost of $953, resulting in 35,000 births from artificial insemination by husband (AIH), and 30,000 births from artificial insemination by donor (AID)."), with Cryogenetic Labs. Inc., Children by Donor Insemination, http://www.cryolab.com/Default.aspx?section=postconceptionservices&page=donorOff spring (last visited Mar. 11, 2009) ("We estimate that now about 4,000 to 5,000 children a year are born in the US as the result of anonymous donor insemination."). It is doubtful that these reported differences are attributable solely to reduced demand over time. Although medical advances that address male infertility have reduced demand for donor sperm among heterosexual couples over the past decade, demand from single and lesbian women and from overseas has increased. See Krawiec, supra note 1, at 216-19 (discussing the shifting demand for donor sperm over time and across populations).
4. 5 F.3d 658 (3d Cir. 1991).
5. See id. at 672 ("This alleged pure altruistic motive [equality of educational access] and alleged absence of a revenue maximizing purpose contribute to our uncertainty with regard to Overlap's anticompetitiveness, and thus prompts us to give careful scrutiny to the nature of Overlap, and to refrain from declaring Overlap per se unreasonable.")
6. see also infra notes 116-19 and accompanying text (discussing Brown in more detail). Variations on this theme have been raised by some observers troubled by recent unsuccessful Clayton Act challenges to nonprofit-hospital mergers.
7. See Barak D. Richman, Antitrust and Nonprofit Hospital Mergers: A Return to Basics, 156 U. PA. L. REV. 121, 123 (2007) (citing a variety of rationales that have been proffered to explain courts' hands-off approach to such mergers, including that "courts do not want competition in the health care sector and prefer instead to entrust benevolent monopolists to act in the community's best interests," and a judicial conviction that nonprofits do not have the same incentives to raise prices as do for-profits, but concluding that the better explanation is that courts fail to understand the market structure of the health-care industry and its effect on competition).
8. See infra notes 144-48 and accompanying text (distinguishing the oocyte-pricing guidelines based on this factor and others)
9. See infra V.B (discussing the rule of per se illegality normally applied to naked, horizontal price-fixing agreements).
10. See infra II.C (discussing egg donor recruiting).
11. See infra note 30 and accompanying text (discussing oocyte shortages in other countries caused by various legal restrictions); infra note 66 and accompanying text (discussing the shortage of oocytes for stem-cell research)
12. See, e.g., DAVID PLOTZ, The Genius Factory: The Curious History of the Nobel Prize Sperm Bank 155 (2005) (free pens imprinted, "Why not get paid for it?"); Posting to Craig's List, San Francisco, http://sfbay.craigslist.org/sfc/etc/1119949773.html ("Your sperm can earn!"); see infra III.C (discussing sperm donor motivations and recruitment).
13. Cf. Alan Page Fiske & Philip E. Tetlock, Taboo Trade-Offs: Reactions to Transactions that Transgress the Spheres of Justice, 18 POL. PSYCH. 255, 286-94 (1997) (discussing the readiness with which some research subjects will consider taboo trade-offs when given rationalizing additional facts to consider)
14. Alvin E. Roth, Repugnance as a Constraint on Markets, 21 J. ECON. PERSP. 37 (2007) (urging organ-matching programs as a means to reduce organ shortages without triggering the repugnance prompted by direct financial incentives).
15. See Mary Anne Case, Pets or Meat, 80 CHI.-KENT L. REV. 1129, 1143 (2005) ("Much of what women have market power over, such as their. .. reproductive services, they have long been expected not to commodify at all. Even when monetary compensation is allowed, it is often kept low and female providers are expected to be interested in rewards other than money.")
16. Krawiec, supra note 1 (arguing that classifying profit-seeking as an improper or, at best, secondary motivation in the context of the provision of reproductive goods and services reinforces gendered notions regarding the proper role of women in reproduction and in markets, and may subtly reduce their economic bargaining power)
17. Julia D. Mahoney, The Market for Human Tissue, 86 VA. L. REV. 163, 188 (2000) ("[T]he implication that young women should desire to undergo a series of highly uncomfortable procedures that pose both short term and long term risks to their physical well-being for which they will not collect the market clearing price threatens to reinforce stereotypes of females as generous rather than self-interested.").
18. "[ASRM] is a multidisciplinary organization dedicated to the advancement of the art, science, and practice of reproductive medicine. ASRM accomplishes its mission through the pursuit of excellence in education and research and through advocacy on behalf of patients, physicians, and affiliated health care providers." ASRM Mission Statement, http://www.asrm.org/mission.html (last visited Mar. 11, 2009).
19. Although eggs from friends or family members may be free, they are often unavailable or undesirable. For example, if hereditary illness is the reason a prospective parent seeks egg donation in the first place, then a related-party donor might be unacceptable. Moreover, a genetic mother with whom the child and parents have continuing contact risks future complications. Kenneth Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 B.Y.U. L. REV. 107, 116.
20. Sharon N. Covington & William E. Gibbons, What is Happening to the Price of Eggs?, 87 FERTILITY & STERILITY 1001, 1002 (2007). This fourth category generates the most controversy and media attention, because the offer prices tend to be higher than average, and the purchaser frequently seeks a donor with quite specific characteristics, such as a particular ethnic background; GPA or SAT scores in a certain range; or specified aptitudes, such as musical or athletic ability. See infra note 31 (discussing such advertising and purchases in more detail).
21. L.R. Shover et. al., The Personality and Motivation of Semen Donors: A Comparison with Oocyte Donors, 7 HUM. REPROD. 575, 575-76 (studying a sample of egg and sperm donors and finding a median age of 28.7 for egg donors-compared to 28.5 for the sperm donors-and that 89% of egg donors are white, 44% are married, and 58% have one or more children).
22. See infra II.C.
23. ADVISORY GROUP ON ASSISTED REPROD. TECHS., N.Y. STATE TASK FORCE ON LIFE & THE LAW, THINKING OF BECOMING AN EGG DONOR? 5 (2009), available at http://www.health.state.ny.us/ community/reproductive_health/infertility/docs/1127.pdf. The lower limit is designed to ensure legal capacity, whereas the upper limit is designed to maximize the response to fertility drugs and to reduce the chances of birth defects. Id.
24. Stephanie Smith, Dim Economy Drives Women to Donate Eggs for Profit, CNN, Aug. 8, 2008, http://www.cnn.com/2008/HEALTH/08/05/selling.eggs/index.html#cnnSTCText.
25. Rene Almeling, Selling Genes, Selling Gender: Egg Agencies, Sperm Banks, and the Medical Market in Genetic Material, 72 AM. SOC. REV. 319, 329 (2007).
26. ADVISORY GROUP ON ASSISTED REPROD. TECHS., supra note 19, at 18.
27. Although some studies document a link between hormone therapy and ovarian cancer, others do not. Id. at 16
28. see also Helen Pearson, Health Effects of Egg Donation May Take Decades to Emerge, 442 NATURE 607-08 (2006) (discussing this debate and current research)
29. See ADVISORY GROUP ON ASSISTED REPROD. TECHS., supra note 19, at 15.
30. Almeling, supra note 23, at 320 (reporting an ASRM estimate of egg donor hospitalization rates)
31. See infra note 66 (discussing a shortage of eggs for stem-cell research prompted by state legislative bans on oocyte compensation). Overseas demand now accounts for thirty percent of all U.S. egg donations. Jim Hopkins, Egg Donor Business Booms on Campuses, USA TODAY, Mar. 16, 2006, at 1A (discussing the impact in the United States of Canada's 2004 ban on paid egg donation)
32. see also Gina Kolata, Price of Donor Eggs Soars, Setting Off a Debate on Ethics, N.Y. TIMES, Feb. 25, 1998, at A1 (discussing couples in Japan who pay a premium to egg donors of Japanese descent in the United States because the Japanese ban on paid egg donation has severely reduced supply)
33. American RadioWorks: The Fertility Race (Part 8), No Money for Eggs (American Public Media radio broadcast), available at http://americanradioworks.publicradio.org/features/fertility_race/part8/ (discussing the egg shortage created by the U.K. ban on paid donations, and the resulting imports from the United States).
34. The high price was reportedly received through an Internet auction site, launched by a former fashion photographer, through which couples can bid for the eggs and sperm of fashion models. The site claims sales of $39.2 million through 2004. See Ron's Angels, http://www.ronsangels.com/ (last visited Mar. 11, 2009)
35. see also Carey Goldberg, On Web, Models Auction Their Eggs to Bidders for Beautiful Children, N.Y. TIMES, Oct. 23, 1999, at A11 (reporting that the site auctioned eggs for as much as $150,000). Aggressive advertising in college newspapers and on-campus flyers-particularly at Ivy League schools-offering prices as high as $50,000 have also generated controversy. See, e.g., Annie M. Lowrey, Will You Be My Baby's Mama?, HARV. CRIMSON, Apr. 29, 2004 (discussing ads for egg donation in The Harvard Crimson and other Ivy League college newspapers)
36. Ken Schwartz, Ivy Eggs, BUSINESS TODAY, Aug. 5, 2006 (discussing ads for egg and sperm donors in campus newspapers at Princeton and other Ivy League schools)
37. Bioethics.net, http://bioethics.net/blog/images/donor.jpg (last visited Mar. 11, 2009) (photograph of a flyer posted on the campus of the University of Pennsylvania offering $15,000 to $25,000 for a fun, attractive donor meeting certain height and ethnicity requirements). Whether fees in this range are common or outliers remains unclear.
38. "[SART] is the primary organization of professionals dedicated to the practice of assisted reproductive technologies (ART) in the United States.. .. The mission of our organization is to set and help maintain the standards for ART in an effort to better serve our members and our patients." SART Homepage, http://www.sart.org/ (last visited Mar. 11, 2009).
39. Covington & Gibbons, supra note 15, at 1002-03 (reporting averages from a survey of SARTaffiliated clinics, and from agency Web sites that are registered with SART)
40. See infra notes 86-95 and accompanying text
41. Consistent with this theory, systematic study of college newspaper ads suggests that the average egg donor compensation offered in that setting is over $9000. Aaron D. Levine, Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors 7 (2009) (unpublished draft, on file with author).
42. Machelle M. Seibel & Ann Kiessling, Compensating Egg Donors: Equal Pay for Equal Time?, 328 NEW ENG. J. MED. 737 (1993)
43. Ethics Comm. of the Am. Soc'y for Reprod. Med., Financial Compensation of Oocyte Donors, 88 FERTILITY & STERILITY 305, 308 (2007).
44. See infra notes 56-60 and accompanying text (discussing sperm donor compensation rates)
45. In section VI below, I relax the assumption of successful price suppression and consider an alternate motivation for attempted price collusion in the egg market-the desire to avoid public controversy that may trigger more rigorous state or federal oversight of the fertility industry
46. See Joseph Berger, Our Towns; Yale Gene Pool Seen as Route to Better Baby, N.Y. TIMES, Jan. 10, 1999, at A19 (referencing an ad in The Yale Daily News that read "Desperately Seeking Smart, Sensitive, Sunny Samaritan")
47. Schwartz, supra note 31, at 1 (discussing ads that urge prospective egg donors to "give the gift of life"); Cornell Egg Donor Home, http://www.eggdonorcornell.com ("You [prospective egg donors] can literally give the gift of life! In addition, you can be compensated $8,000 for your time and effort and receive a free medical screening.") (last visited Mar. 11, 2009).
48. For example, the Web site of Elite Fertility Solutions states, If financial gain is your main motivating factor, then you may not be eligible for the program. EFS does not compensate the donor for her eggs. However, we do compensate you for your time, commitment and effort. We are interested in candidates whose primary motivation is to help a couple achieve their dream of having a child. Egg donor compensation is $5000.00. Elite Fertility Solutions, http://www.elitefertility.com/egg_donor_faq.html#HMMCIM (last visited Sept. 30, 2008). The Web sites of other egg donation programs contain similar statements. See, e.g., ConceiveAbilities, http://www.conceiveabilities.com/donor_pg_4a.htm (last visited Mar. 11, 2009) ("[W]e strongly advise any potential egg donor not to apply if compensation is the only motivation."); Fertility Alternatives, Inc., Information for Potential Egg Donors, http://www.fertilityalternatives.com/ files/eggdonorinfo.pdf (last visited Mar. 11, 2009) ("Candidates understand there is compensation for their time and efforts as a donor[;] however[,] it is not their primary motivation. It is very important that you choose to be a donor for altruistic reasons in addition to the financial compensation.").
49. Almeling, supra note 23, at 333-34
50. As one egg donor agency director stated, "'[Customers] want to know that the person donating is a good person. They want to know that person wasn't doing it for the money.'" Id. at 327.
51. Posting to Craig's List, supra note 10
52. See, e.g., Erica Haimes, Issues of Gender in Gamete Donation, 36 SOC. SCI. MED. 85, 87 (1993) (reporting that the Archbishop of Canterbury's Commission in 1948 urged the criminalization of sperm donation because the process requires masturbation and results in the birth of an illegitimate child)
53. John McMillan, The Return of the Inseminator: Eutelegenesis in Past and Contemporary Reproductive Ethics, 38 STUD. HIST. PHILOS. BIOL. BIOMED. SCI. 393 (2007) (calling the 1948 report's position that artificial insemination amounts to adultery as "verging on the bizarre" and discussing other religious objections to artificial insemination). More recently, members of the Warnock Committee (established by the British government to study and make recommendations on issues of human fertilization and embryology, and which led to the British Human Fertilization and Embryology Act of 1990) reported unspecified feelings by the committee of "yuk" and "instinctive dislike" of sperm donation, which they recommended be approved, nonetheless. Id. at 89-90; see also infra notes 61-65 and accompanying text (discussing the modern social conception of sperm donation).
54. Denise Grady, As the Use of Donor Sperm Increases, Secrecy Can Be a Health Hazard, N.Y. TIMES, June 6, 2006, at F5.
55. See, e.g., Become a Sperm Donor, http://thespermbankofca.org/pages/page.php?pageid=11& cat=11 (last visited Mar. 11, 2009)
56. Becoming a Sperm Donor, http://www.genomeresources.com/?page=becoming (last visited Mar. 11, 2009)
57. How to Become a PRS Sperm Donor, https://www.pacrepro.com/index.php?main_page=how_to_become (last visited Mar. 11, 2009)
58. How to Become a Sperm Donor, http://www.spermcenter.com/formen.htm (last visited Mar. 11, 2009).
59. See, e.g., Rachel Cook & Susan Golombok, A Survey of Semen Donation: Phase II-The View of the Donors, 10 HUM. REPROD. 951, 952 (1995) (studying the profiles of a sample of sperm donors and finding an average age of twenty-four, and that 81% were single, 89% were white, and 65% were full-time students); Shover et al., supra note 16, at 576 (reporting similar findings)
60. AM. SOC'Y FOR REPROD. MED., THIRD PARTY REPRODUCTION (SPERM, EGG, AND EMBRYO DONATION AND SURROGACY): A GUIDE FOR PATIENTS 10 (2006), available at http://www.asrm.org/Patients/patientbooklets/thirdparty.pdf
61. Several samples typically are required, as sperm susceptibility to damage from freezing varies not only among individuals, but also among samples from the same individual. Id.; Becoming a Sperm Donor, supra note 47.
62. See, e.g., BioGenetics Corporation, "Become Exclusive Donor" in NJ or NY, http://www.sperm1.com/biogenetics/donor.html#Anchor-When-47857 (last visited Mar. 11, 2009) (offering $100 per usable specimen for anonymous donors and $500 per usable specimen to open I.D. donors); California Cryobank, CCB Open Donors, http://www.spermbank.com/newdonors/index.cfm?ID=19 (last visited Mar. 11, 2009) (offering extra payments to donors who agree to have their identity released).
63. AM. SOC'Y. FOR REPROD. MED, supra note 49, at 10.
64. Id. (discussing FDA and ASRM guidelines for sperm donation)
65. Jennifer Egan, Wanted: A Few Good Sperm, N.Y. TIMES MAG., Mar. 19, 2006, at 13 (discussing the operation of sperm banks).
66. Some exceptions are reported. For example, the previously noted auction Web site for fashionmodel gametes begins sperm bidding at $15,000. See Ron's Angels, supra note 31. Such competition for sperm-particularly based on the physical attractiveness of the donor-is considered less common in the sperm market than in the egg market, however.
67. See sources cited supra note 47
68. DEBORA L. SPAR, THE BABY BUSINESS 39 (2006).
69. See sources cited supra note 47
70. Seibel & Kiessling, supra note 36; Ethics Comm. of the Am. Soc'y for Reprod. Med., supra note 36, at 308. One hour may be an overly generous estimate. See Paul A. Bergh, Indecent Proposal: $5000 Is Not "Reasonable Compensation" For Oocyte Donors-A Reply, 71 FERTILITY & STERILITY 9 (1999) (arguing that although "the complexity and risk faced by an egg donor can't even begin to compare to the relatively easy and risk-free experience of a sperm donor[,]. .. male donors receive between $50 to $75 per donation and these often take no more than 5 to 10 minutes to produce") (emphasis added). This estimate, however, does not include time spent during the initial interview and subsequent screening, which probably takes several hours. Ethics Comm. of the Am. Soc'y for Reprod. Med., supra note 36, at 308
71. HEALTH CANADA, FINAL REPORT: WORKSHOP ON THE REIMBURSEMENT OF EXPENDITURES FOR EGG AND SPERM DONORS 5 (2005), available at http://www.hc-sc.gc.ca/hl-vs/alt_formats/hpb-dgps/pdf/reprod/section12-eng.pdf ("[A]ll potential [sperm] donors have to visit the clinic more than once before they are accepted as donors, and visits last from thirty minutes to three hours.").
72. Instead, sperm donation controversy has largely focused on issues relating to anonymity, genetic testing, eugenics, and recent sperm-industry scandals. See Krawiec, supra note 1 (discussing each of these controversies in greater detail); see also Naomi Cahn, Accidental Incest: Drawing the Line-Or the Curtain?-for Reproductive Technology, 32 HARV. J.L. & GEND. 59 (discussing the implications of reproductive technology for accidental incest and calling for greater regulation).
73. See, e.g., sources cited supra note 10.
74. See Almeling, supra note 23, at 325-30 (discussing the expectations of sperm bank staff and customers that sperm donors are simply doing a job for money, whereas egg donors are donating an intimate and precious gift)
75. See, e.g., Haimes, supra note 45, at 87 (discussing the concern of the Archbishop of Canterbury's Commission that sperm donors might invoke "altruistic idealism" to disguise what was actually "spiritual pride" in their greater virility and ability to propagate)
76. Scoop A. Wasserstein, Shopping For Sperm: Nobel Prizes Wanted, HARV. CRIMSON, July 22, 2005 (quoting David Plotz, author of The Genius Factory, as stating that the key attraction of sperm donation to most young men is "making money for something you do anyway," and that, although some men claim altruistic motives, many of them are really egomaniacs).
77. See Almeling, supra note 23, at 29 (observing that agency staff will coach or disqualify egg donors who do not report altruistic motivations but do not do the same for sperm donors); Shover et. al., supra note 16, at 576 (reporting motivations for a sample of egg and sperm donors).
78. In addition, California, Massachusetts, Connecticut, Indiana, New Jersey, and Maryland all legislatively prohibit compensation for oocytes procured for use in stem-cell research. Elizabeth Gerber, California Limits Egg Donor Compensation in Privately-Funded Research, 35 J.L. MED. & ETHICS 220 (2007)
79. Russell B. Korobkin, Recent Developments in the "Stem Cell Century": Implications for Embryo Research, Egg Donor Compensation, and Stem Cell Patents 13-14 (UCLA Sch. of Law, Pub. Law & Legal Theory Research Paper No. 08-21, 2008), available at http://ssrn.com/abstract=1143523. The legislation has generated controversy and debate, as well as a severe shortage of eggs for stem-cell research. See generally Korobkin, supra, at 14 (detailing examples, including Harvard University, which spent over $100,000 in 2007 to recruit women willing to donate eggs for therapeutic-cloning research without compensation and found no volunteers)
80. Lee Romney, New Battle Lines Are Drawn over Egg Donation, L.A. TIMES, Sept. 13, 2006, at A27 (detailing the donor-compensation debate as it relates to stem-cell research)
81. Gerber, supra (same). None of the restrictions apply to eggs donated for fertility treatments, a distinction for which the American College of Obstetricians and Gynecologists (ACOG) has lobbied hard. Romney, supra, at A27. ASRM and ACOG both opposed the California Statute (S.B. 1260).
82. See ASSEMBLY COMM. ON HEALTH, BILL ANALYSIS SB 1260, S.B. 1260, 2005-2006 Sess., at 10 (Cal. 2006), available at http://info.sen.ca.gov/pub/05-06/bill/sen/sb_1251-1300/sb_1260_cfa_20060626_104743_asm_comm.html.
83. Bergh, supra note 60; Mark V. Sauer, Indecent Proposal: $5000 Is Not "Reasonable
84. Compensation" for Oocyte Donors, 71 FERTILITY & STERILITY 7 (1999)
85. See, e.g., Bergh, supra note 60, at 9; Kolata, supra note 30; Sauer, supra note 68, at 7; Mark V. Sauer, Letters to the Editor: The Debate Continues, 72 FERTILITY & STERILITY 182, 182-83 (1999) [hereinafter Sauer, The Debate Continues]; American RadioWorks: The Fertility Race (Part 10), The Decision to Donate-Assessing the Risks (American Public Media radio broadcast), available at http://americanradioworks.publicradio.org/features/fertility_race/part10/section3.shtml.
86. Dr. Sauer is currently a Professor of Obstetrics and Gynecology and Director of the Division of Reproductive Endocrinology and Infertility at Columbia University Medical Center. See http://www.cumc.columbia.edu/dept/obgyn/services/infertility/clinical_team.html.
87. Sauer, The Debate Continues, supra note 69, at 182
88. Ethics Comm. of the Am. Soc'y for Reprod. Med., Ethical Considerations of Assisted Reproductive Technologies, 62 FERTILITY & STERILITY (SUPPLEMENT 1) 47S (1994).
89. Ethics Comm. of the Am. Soc'y for Reprod. Med., Financial Incentives in Recruitment of Oocyte Donors, 74 FERTILITY & STERILITY 216, 216 (2000). 80. Id. at 219.
90. This assumes that each donated sample consumes a full hour of the donor's time, including travel and waiting times. See Bergh, supra note 60, at 9 (suggesting that this overestimates the time required for sperm donation).
91. Ethics Committee of the Am. Soc'y for Reprod. Med., supra note 36, at 305.
92. See generally SART Homepage, supra note 32
93. Jennifer Durgin, More Is Not Merrier in Fertility Clinics, DARTMOUTH MED., Summer 2007, at 3, available at http://dartmed.dartmouth.edu/summer07/html/disc_fertility.php.
94. Covington & Gibbons, supra note 15, at 1001
95. Seventy-one percent of SART-member clinics report the use of egg donors from donorrecruitment agencies. Seventy-five percent report an in-house, paid, donor-recruitment program. Id. at 1002.
96. The list is available at http://www.asrm.org/Patients/eggdonor_agencies.pdf.
97. Covington & Gibbons, supra note 15, at 1003
98. See supra notes 33-35 and accompanying text (elaborating on the problems with self-reported egg-pricing data and discussing disconfirming evidence)
99. Carlene Hempel, Golden Eggs, BOSTON GLOBE MAG., June 25, 2006, at 18.
100. Because the evidence of an agreement is weaker with respect to the "community standards" discussed supra in section IV.A and because, in any event, those standards appear largely supplanted by the ASRM compensation guidelines, I focus the discussion in this section V on the ASRM guidelines.
101. 15 U.S.C. § 1 (2006).
102. United States v. Brown Univ., 5 F.3d 658, 665 (3d Cir. 1993).
103. Ancar v. Sara Plasma, Inc., 964 F.2d 465, 470 (5th Cir. 1992) (concluding the trial court abused its discretion by dismissing for lack of jurisdiction the antitrust claims of a homeless person whose livelihood depended on the sale of plasma).
104. Brown, 5 F.3d at 667 (holding that a full rule of reason analysis was required to determine whether an agreement to set financial-aid packages violated the Sherman Act).
105. See, e.g., NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 100 n.22 (1984) ("There is no doubt that the sweeping language of § 1 applies to nonprofit entities.").
106. See, e.g., Dental Ass'n v. FTC, 526 U.S. 756 (1999) (finding that the FTC had jurisdiction over the California Dental Association, a nonprofit, voluntary association of local dental societies to which 19,000 dentists belonged, including roughly seventy-five percent of those practicing in the state of California)
107. Goldfarb v. Va. State Bar, 421 U.S. 773, 787-88 (1975) (finding that a nonprofit professional association of lawyers violated the Sherman Act).
108. SPAR, supra note 58, at 49 (describing the commercial nature of fertility-center operations)
109. Per se agreements are "agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality-they are 'illegal per se.'" Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 692 (1978). Naked pricefixing is one of the few fact patterns easily characterized as a per se violation of the Sherman Act because "naked price fixing rarely or never has anything to be said in its support." HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY 256 (3d ed. 2005).
110. Roger G. Noll, "Buyer Power" and Economic Policy, 72 ANTITRUST L.J. 589, 591 (2004)
111. see also ROGER D. BLAIR & JEFFREY L. HARRISON, MONOPSONY, ANTITRUST LAW AND ECONOMICS 26 (1993) ("[B]uyers have given in to the temptation to fix prices and have, for the most part, been treated in the same manner as sellers.")
112. HOVENKAMP, supra note 108, at 17 ("[M]onopsony is an important antitrust concern and is just as inconsistent with consumer welfare as monopoly is.").
113. HOVENKAMP, supra note 108, at 257. As stated by the Supreme Court, "[T]he absence of proof of market power does not justify a naked restriction on price or output." NCAA, 68 U.S. at 109.
114. See Arizona. v. Maricopa County Med. Soc'y, 457 U.S. 332, 342-57 (1982) (holding that maximum-fee agreements for physician services are per se unlawful under § 1 of the Sherman Act).
115. Goldfarb v. Va. State Bar, 421 U.S. 773 (1975).
116. Under a rule of reason analysis, the plaintiff bears the initial burden of demonstrating "adverse, anti-competitive effects within the relevant product and geographic markets," which is typically accomplished through proof of the defendant's market power. United States v. Brown Univ., 5 F.3d 658, 668 (3d Cir. 1993). "Quick look" analysis is an intermediate standard that the Court has applied "in cases where per se condemnation is inappropriate, but where 'no elaborate industry analysis is required to demonstrate the anticompetitive character' of an inherently suspect restraint." Id. at 669 (quoting NCAA, 468 U.S. at 109). Under a quick-look analysis "the defendant must promulgate some competitive justification for the restraint, even in the absence of detailed market analysis." Id.
117. See, e.g., Goldfarb, 421 U.S. at 788 n.17 (1975) (condemning the practice at issue-a minimumfee schedule published by the Fairfax County Bar Association-but noting the special character of the learned professions)
118. Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 682-83 (1978) (invalidating under an abbreviated rule of reason, rather than a per se, analysis an ethics rule promulgated by a nonprofit professional association of engineers that prohibited competitive bidding for jobs).
119. See generally Richman, supra note 5
120. See Brown, 5 F.3d at 671; Richman, supra note 5, at 124 (arguing that courts' hands-off approach to nonprofit-hospital mergers reflects a misunderstanding of the ways in which the structure of the American health-care system affects market competition).
121. Brown, 5 F.3d at 660.
122. 68 U.S. 85 (1984).
123. 526 U.S. 756 (1999).
124. 435 U.S. 679 (1978).
125. Id. at 691 (1978); NCAA, 68 U.S. at 116 (rejecting the NCAA's defense, and stating that, "at bottom the NCAA's position is that ticket sales for most college games are unable to compete in a free market").
126. FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 463 (1986) (rejecting the argument that "an unrestrained market in which consumers are given access to the information they believe to be relevant to their choices will lead them to make unwise and even dangerous choices" as "'nothing less than a frontal assault on the basic policy of the Sherman Act'").
127. United States v. Brown Univ., 5 F.3d 658, 675 (3d Cir. 1993).
128. Durgin, supra note 88, at 3
129. Cal. Dental Ass'n v. FTC, 526 U.S. 756, 787 (1999).
130. Ind. Fed'n of Dentists, 476 U.S. at 451.
131. Cal. Dental Ass'n, 526 U.S. at 788 (Breyer, J., concurring in part and dissenting in part) (noting that the field of dentistry presents barriers to entry, including the costs of education and setting up a practice).
132. See id. at 789 (making this argument in connection with the California Dental Association as evidence of market power).
133. See SPAR, supra note 58, at 32 (discussing the elasticity of demand in the baby market); Kimberly D. Krawiec, Price and Pretense in the Baby Market, in BABY MARKETS: MONEY, MORALS, AND THE NEOPOLITICS OF CHOICE (forthcoming 2009), available at http://ssrn.com/abstract=1342710 (discussing characteristics, including demand elasticity, of various baby-market sectors).
134. The phrase "monopsony," meaning a single buyer, was first coined by Joan Robinson. JOAN ROBINSON, THE ECONOMICS OF IMPERFECT COMPETITION 215 (1933).
135. Given that single-buyer models are typically unrealistic as applied to modern markets, economists instead employ models of oligopsony or "competitive monopsony," in which buyer market power persists despite competition among buyers. The phrase "oligopsony" refers to the market power of buyers and not their number, which need not be small. V. Bhaskar et. al., Oligopsony and Monopsonistic Competition in Labor Markets, 16 J. ECON. PERSP. 155, 156 (2002).
136. William Boal & Michael Ransom, Monopsony in American Labor Markets, EH.Net Encyclopedia (Jan. 23, 2002), http://eh.net/encyclopedia/article/boal.monopsony.
137. HOVENKAMP, supra note 108, at 256; Boal & Ransom, supra note 137
138. See, e.g., Balmoral Cinema v. Allied Artists Pictures Corp., 885 F.2d 313, 316 (6th Cir. 1989) (suggesting that the exercise of buyer market power increases consumer welfare through lower consumer prices)
139. Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922, 927 (1st Cir. 1984), cert. denied, 471 U.S. 1029 (1985) (holding that Blue Shield's prohibition against doctors' charging Blue Shield subscribers more than the stipulated payment-schedule amounts did not violate the Sherman Act, because Blue Shield would pass on the benefits of reduced insurance premiums to its customers).
140. This is because, although the monopsonist can purchase the input at lower prices, its marginal outlay (the total additional cost of producing one more unit) is higher than a buyer in a competitive market. Unless the monopsonist can perfectly price discriminate, each additional unit she purchases increases the price of all previously purchased units. This is in contrast to the buyer in a competitive market, who must pay the market wage regardless of how many inputs she purchases. For more extensive discussion of this point, see BLAIR & HARRISON, supra note 109
141. HOVENKAMP, supra note 108, at 14-16, 158-59; Noll, supra note 109, at 591
142. Noll, supra note 109, at 591
143. HOVENKAMP, supra note 108, at 14-15
144. Id. at 19-20. A difficulty with antitrust analyses of monopsony markets, however, is distinguishing low input purchase prices stemming from monopsony from those stemming from reduced transaction costs or the elimination of upstream market power. Id. at 16.
145. See sources cited supra note 109
146. See, e.g., NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 117-19 (1984) (holding that the special nature of athletic competition requires some cooperation)
147. Broad. Music, Inc. v. CBS, 441 U.S. 1, 23 (1979) (finding that the collusion at issue enabled the creation of a product package that no individual could offer, thus enhancing consumer choice and increasing the volume of music sales)
148. United States v. Brown Univ., 5 F.3d 658, 682-84 (3d Cir. 1993) (finding that collusion improved the product itself because socioeconomic diversity enhances the educational experience).
149. Brown, 5 F.3d at 669 ("[A] restraint on competition cannot be justified solely on the basis of social welfare concerns.").
150. See infra notes 165-66 and accompanying text (discussing the possibility that the oocyte-pricing agreement primarily serves the political purpose of avoiding more onerous state or federal regulation of the fertility industry)
151. See Am. Soc'y. for Reprod. Med., supra note 49, at 10 (outlining justifications for the ASRM oocyte-pricing guidelines).
152. See generally Krawiec, supra note 1 (critiquing each of these arguments in more detail); Korobkin, supra note 66 (addressing coercion, commodification, and other objections to compensated egg donation for stem-cell research)
153. These contestable assumptions are frequently invoked in debates over the propriety of financial incentives for gametes, organs and other tissue, blood, plasma, and human-subjects research. See generally Rosario M. Isasi & Bartha M. Knoppers, Monetary Payments for the Procurement of Oocytes for Stem Cell Research: In Search of Ethical and Political Consistency, 1 STEM CELL RES. 37 (2007) (discussing compensation mechanisms that the authors conclude have the capacity to preserve the principles of altruism and community solidarity, while increasing participation through financial incentives)
154. Julia D. Mahoney, Altruism, Markets, and Organ Procurement, 72 LAW & CONTEMP. PROBS. 17 (Summer 2009) (discussing a variety of proposed or possible compensation schemes for organ donation, some of which represent a middle ground between market-based compensation and pure altruism).
155. See supra notes 31-33 and accompanying text (discussing the rationales and mechanisms by which ASRM developed pricing guidelines for oocyte donation)
156. See Ancar v. Sara Plasma, Inc., 964 F.2d 465 (5th Cir. 1992).
157. Robert S. Gaston et. al., Limiting Financial Disincentives in Live Organ Donation: A Rational Solution to the Kidney Shortage, 6 AM. J. TRANSPLANTATION 2548-55 (2006).
158. Mark D. Fox, The Price is Wrong: The Moral Cost of Living Donor Inducements, 6 AM. J. TRANSPLANTATION 2529-30 (2006).
159. Cf. Richard A. Epstein, The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation, 37 J. LEGAL STUD. 459, 483 (2008) (arguing that, because organ recipients care deeply about quality, demand is low under a market-based procurement system for organs from those who are "down and out").
160. See Roth, supra note 11, at 47 (arguing that much of the repugnance to cadaveric organ sales stems from a fear that it will lead to living-donor sales)
161. See Rene Almeling, Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation, 72 LAW & CONTEMP. PROBS. 37 (Summer 2009) (reporting that, of the agencies she studied, egg agencies required psychological counseling to explore donors' psychological readiness to produce unknown genetic offspring, but that sperm agencies did not)
162. Carlene Hempel, Golden Eggs, supra note 98, at 18 (worrying that young women will later regret the decision to produce genetic offspring that they do not raise, particularly if they decide to do so for money). See generally GAY BECKER, THE ELUSIVE EMBRYO: HOW MEN AND WOMEN APPROACH NEW REPRODUCTIVE TECHNOLOGIES (2000) (demonstrating the ways in which new reproductive technologies reflect gendered cultural meanings of parenthood and infertility).
163. 42 U.S.C. § 274e (2006). Louisiana specifically prohibits paid egg donation, whereas Virginia specifically permits it. Other states' laws are silent on the matter. THE PRESIDENT'S COUNCIL ON BIOETHICS, REPRODUCTION AND RESPONSIBILITY: THE REGULATION OF NEW BIOTECHNOLOGIES 174 (2004)
164. Perhaps to minimize the risk of noncompliance with NOTA, the ASRM Ethics Committee Report regarding financial incentives for egg donation specifies that compensation arrangements should suggest that payment is for the donor's time and inconvenience alone, is not payment for the eggs themselves, and should not be so large as to be an "undue inducement" into the procedure. Am. Soc'y for Reprod. Med., supra note 79, at 216
165. see also John Robertson, Legal Issues in Human Egg Donation and Gestational Surrogacy, 13 SEMINARS REPROD. ENDOCRINOLOGY 210, 213-15 (1995) (suggesting these restrictions as a means to address legal uncertainty regarding the status of egg and sperm payments under organ transplant laws.)
166. See Baum, supra note 14, at 127 (noting that the average woman has over 400,000 pre-oocytes at puberty, yet will menstruate only about 500 times in her life, meaning that under normal conditions no woman will ever use up all her eggs, even if many are donated to others)
167. In general, if the organization, management, and litigation costs of operating a cartel are greater on a per-unit basis than the amount of price suppression, then collusion will not be worthwhile. Significantly, for this computation, it is the absolute price and not the price per hour that is relevant. Thus, if sperm goes for $75 per transaction and eggs for $5000, then organizing a sperm cartel may not be worth its costs, even if the result were to drive sperm prices to zero.
168. Whereas sperm can be frozen and shipped overseas, those employing the services of an egg donor residing in a different geographic region either travel to the donor's location for the fertility procedure or pay the expenses for the donor's travel to the purchaser's geographic location, substantially increasing the costs of the egg trade across geographic regions. Krawiec, supra note 1, at 14-21 (discussing the international egg and sperm trades). With the exception of Denmark, which is a large exporter of sperm to other countries, the direction of export in the case of both egg and sperm is more commonly from the United States to other countries, due to shortages caused by legal restrictions in many other jurisdictions. Id.
169. SPAR, supra note 58, at 37-38
170. As discussed supra notes 19-37 and accompanying text, in contrast to sperm donation, in which sperm donor samples are collected and the donor is paid prior to placing samples on the market, egg donation does not occur unless a donor is selected by a particular purchaser and a price is agreed upon. As a result, egg purchases seem in many ways more personal than sperm purchases.
171. See also Almeling, supra note 23, at 333 (arguing that these different collection procedures lend themselves to "a caring gift cycle," rather than to a "legalistic economic transaction," and that egg donor agencies reinforce that perception by expressing appreciation to egg donors for their generosity in ways that are not done with sperm donors, who are perceived more like waged labor.)
172. See sources cited supra notes 31, 39-40
173. Almeling, supra note 23, at 332-33 (discussing fee negotiation, and gifts and "bonuses" paid to successful egg donors). There are also allegations that some egg donor ads offering very large sums are not legitimate, but instead are "bait and switch" tactics designed to lure prospective donors into the pool. ADVISORY GROUP ON ASSISTED REPROD. TECHS., supra note 19, at 7 (warning prospective egg donors that, "in some cases, there is actually no couple willing to pay the enticing fees. Instead, a broker is trying to attract a large number of applicants.")
174. Adam Pertman & Naomi Cahn, Limiting Reproduction, BALTIMORE SUN, Feb. 25, 2009 (citing recent fertility industry controversies and arguing that it is time to consider federal and state regulation of the fertility industry, rather than relying solely on self-regulation)
175. Melissa Jacoby, The Debt Financing of Parenthood, 72 LAW & CONTEMP. PROBS. 147 (Summer 2009) (citing researchers that call for increased regulation of the fertility industry).
176. See, e.g., VIVIANA ZELIZER, THE PURCHASE OF INTIMACY 27-34 (2005) (discussing the means by which different rules of exchange may be employed to differentiate similar relationships).
177. See, e.g., Fiske & Tetlock, supra note 11, at 285-94.
178. See, e.g., Epstein, supra note 154; Roth, supra note 11.