Is There an Ethical Problem Here?

Egg donation fills an important niche in American infertility practice. It helps women with ovarian failure, women over forty, and gay men to have children. It does so, to a large extent, because donors are paid for their services.

Some people, however, are uncomfortable with paying egg donors, and in most countries it is illegal. Some fear that payment exploits women, others that it risks “commodifying” gametes and resulting children. Although only Louisiana has seen fit to ban payments, the profession’s own ethics committee, created by the American Society of Reproductive Medicine, has issued payment guidelines, setting a $10,000 limit and specifying that compensation should not depend on the donor’s characteristics.

In this issue of the Hastings Center Report, Aaron Levine reports that, in a survey of two months of advertisements for egg donors in 306 college newspapers, he found that nearly half of the ads exceeded the ASRM’s $10,000 recommended limit on compensation. He also found that the higher the average SAT score of the college or university, the more likely that the ads exceeded that amount, suggesting that “donor agencies and couples valued specific donor characteristics and based compensation on those preferences.” This would also violate the ASRM guidelines.

Based on this research, Levine questions whether the “current self-regulatory framework provides appropriate ethical protection for oocyte donors.” He suggests some ways to improve enforcement and how college newspapers might aid in that effort. He is fair-minded and aware of the effect of bans and compensation caps on the availability of donor eggs.

Levine’s findings, however, show more efficacy than he highlights. After all, more than half of the advertisements offered less than $5,000 and all those offering more came from private individuals and agencies who are not themselves members of the ASRM. So the problem is finding a way for the clinics to “police” their patients to make sure that their fees haven’t violated the guidelines. Yes, the profession could ride herd on agencies it lists as agreeing to abide by the guidelines—ensuring that they do not, for example, openly advertise that they will pay more. But even that would not prevent side deals that pay more.

A second question concerns the substance of those guidelines. As Levine notes, the ASRM gave no justification for the $10,000 cap nor for its dislike of payments calibrated to particular characteristics. But it is not obvious that payments above $10,000 lead young women to overlook the risks of egg donation, nor that the higher-paid donors are less well off. It may lead some women to become egg donors who would not otherwise do so, but that does not mean that they have been exploited, much less unfairly induced.

Nor is it obvious that donors with particular characteristics should not be paid more (within whatever price range is acceptable). The ASRM never says what is wrong with paying women who are healthier, more fertile, have a particular ethnic background, a high IQ, or some other desirable characteristics. The charge of “commodification” is easily hurled but not easily justified. After all, we allow individuals to choose their mates and sperm donors on the basis of such characteristics. Why not choose egg donors similarly?

What are the alternatives to the current regulatory picture? Even flawed professional guidelines may be better than no guidelines at all. The alternative of banning all payments would drastically reduce access to donor eggs. Nor is more muscular governmental regulation likely to be better. There is no guarantee that government rules would be sensible and uniform across states. There is also no certainty that they would be enacted. Nothing has stopped states or the federal government from regulating egg donation, yet only one state has thought there is a problem needing legislation.

So while admiring Levine’s diligent efforts to bring facts to bear on a policy issue, I am left wondering whether there is an ethical “there” there worth worrying about. Compared to the alternatives, the current system of self-regulation is flexible and uniform. Yes, it can be improved, but the focus should be...