There has been much fanfare over Governor Arnold Schwarzenegger’s signing of California Assembly Bill 1317. AB 1317 (now codified in §125325 of the California Health and Safety Code) requires a warning in all advertisements for oocyte donation. The warning must notify patients that there are potential health risks associated with human egg donation and advise consulting with a reproductive health care specialist. While its goal is laudable, this bill does little to address the substantial problems facing this industry. Among my concerns:
The bill fails to require basic licensing of egg donor agencies. While I am not suggesting the licensing needs to be as extensive as New York’s (though I am not opposed to it), there should be some minimum licensing including the identity of the owner(s) and a physical location of the business.
The bill fails to adopt the egg donation guidelines established by the American Society of Reproductive Medicine. It is essential, in my opinion, that guidelines regarding the age of the donor, her compensation and the maximum number of donation cycles she may undergo be part of any meaningful legislation.
The bill allows those soliciting donors to be exempt from the notice requirements if they are members of the ASRM. The reason I list this as a concern is that many members of ASRM flagrantly disregard a number of ASRM guidelines, particularly the one that limits donor compensation to no more than $10,000 per retrieval. Take a gander at craigsList and notice the number of donor advertisements offering women more than $10,000 and then at the soliciting agency’s website where they swear adherence to the ASRM guidelines.
The bill does nothing to address the problem of disclosure regarding the ownership of the agency. There are egg donor programs owned and/or operated by fertility groups, attorneys and mental health professionals yet their clients and donors have no clue. This is worrisome as oftentimes Egg Donors and Recipient Parents are referred to donor programs by the very professionals who actually own and operate the agency – without any such disclosure. The ensuing conflicts are problematic and, in my opinion, unethical.
The bill missed an opportunity to regulate multiple party representation by attorneys. It has become commonplace for a single attorney to represent the Recipient Parents, the Egg Donor and the Agency (and sometimes a Gestational Carrier and her partner). Exacerbating this conflict further is that many agencies are owned by attorneys who are then engaged to draft the contract. While I am not suggesting that every attorney has inappropriate intentions, it defies commonsense to believe that these attorneys can truly put their client’s interest before their own business and financial interests. Not to mention the more troubling question: who is the client?
While the legislation requires disclosure of some of the risks, it fails to protect both Donors and Recipients from the scandals we have seen with agencies such as SurroGenesis and B Coming. The legislation should have mandated egg donor complication medical insurance to be taken out for the protection of the Egg Donor, access to independent counsel for the Recipient Parents and the Egg Donor and minimum standards to ensure that money held in trust to cover all the anticipated expenses, including the egg donor’s fee, will be available. Just two weeks ago I was contacted by an Egg Donor who underwent two retrievals, never received her compensation and is now facing thousands of dollars in medical bills because her agency never properly administrated the trust account.
The legislation missed out on an opportunity to really put an end to bait-and-switch tactics used by many donor agencies. Too frequently Recipient Parents are induced to retain an egg donor program based upon the alleged availability of a single donor. It is only when the agency is formally retained (i.e. their fee is paid), that the Recipients are notified that their chosen donor is, all of a sudden, no longer available or willing to donate. Of course, given that the agency fee is non-refundable, the unsuspecting Recipients are forced to either select a potentially less compatible donor or forfeit their retainer fee. If the legislature was truly serious about eliminating false advertising, they should have required agencies to make truthful representations regarding the availability of their donors.
Do not get me wrong, this legislation is a promising start. However it has fallen far short of what it could have done to restore confidence in this industry following the Octo-Mom, SurroGenesis and B-Coming scandals.