Cash may not be the answer to egg shortage

Payment may cause exploitation and coercion, writes Françoise Baylis

In Canada, it is illegal to pay a woman for her eggs; it is not illegal, however, for a woman to sell her eggs. That is, in Canada the buying is illegal; the selling is not.

Anthony Housefather, Liberal member of Parliament for Mount Royal, wants to change this. He wants to remove the prohibition on payment so as to facilitate the introduction of a commercial market in human reproduction. A commercial market would benefit fertility doctors, lawyers and brokers by increasing their profits. It would also benefit some intended parents who cannot access women’s bodies without payment.

Those who want to remove the prohibition on payment report that there are too few egg donors in Canada, and that many (most) of them operate in a grey market where eggs are exchanged for money.

Participation in this grey market can be a significant problem for egg providers who experience serious side-effects, especially if they think that they are doing something illegal and if they worry about putting the people who are paying them in a precarious position. For these reasons they may not seek needed followup care. The proposed solution is to pay women for their eggs.

That egg providers participate in a grey market and that sometimes they find themselves unable to access needed health care is a serious issue. It is not obvious, however, that the right response is to pay women for their eggs.

The grey market for donor eggs in Canada exists because of uncertainty regarding legal reimbursement of donor expenses. The legislation governing assisted human reproduction prohibits payment for eggs, but permits payment for expenses related to egg donation. The legal wrinkle is that such reimbursements must be made in accordance with regulations that don’t yet exist. This has resulted in a lack of clarity about what is or is not a reimbursable expense.

Health Canada is working to strengthen the Assisted Human Reproduction Act. This includes writing the regulations to “make clear what expenses may be reimbursed to donors and surrogates.” The first draft of the regulations is expected this fall. These regulations will resolve uncertainty about what payments can legitimately occur.

It is also important to examine the empirical claim that there are too few egg donors.

At this time, data to support this claim is lacking.

Even if this were true, however, it does not follow that payment is the way to increase the number of egg donors.

There is, for example, a shortage of solid organs for transplantation, and we do not address this problem by creating a market in organs.

A better way to increase the number of egg donors would be to address their concerns. Egg donors report that they want access to high-quality care, and they want clinical research on the potential harms of egg donation so that they can make better informed choices.

Those who advocate payment for eggs should be transparent about what they believe is a fair price for eggs — a price that is not too low (to avoid taking unfair advantage of women), and a price that is not too high (to avoid unfair inducement in persuading women to do something they would not otherwise do). Fair pricing is a complicated and controversial issue.

Once upon a time, the American Society for Reproductive Medicine tried to set a cap on payments. Its ethics committee report said “sums of $5,000 or more require justification, and sums above $10,000 are not appropriate.” In 2016, however, there was a successful class-action lawsuit alleging illegal pricefixing.

As a result, the pricing language was eliminated from the policy document. Today, in the United States, the cost of eggs is whatever the market will bear and there have been advertisements offering as much as $100,000 for “premium” eggs.

Considering the facts, advocating payment for women’s eggs undermines Health Canada’s commitment to draft the regulations on reimbursement and potentially introduces the risks of exploitation and subtle coercion.

Better to support the current altruistic system and to address the priorities of egg donors.