On August 13, California Gov. Jerry Brown vetoed AB 926, a bill sponsored by the American Society for Reproductive Medicine (ASRM) that would have permitted researchers to pay women for their eggs at the same rate as the fertility industry (approximately $5,000 to $10,000 per cycle). This bill would have overturned protections implemented by the almost unanimous 2006 passage of SB 1260. Authored by Sen. Deborah Ortiz (D-Marina del Rey), a longtime reproductive rights advocate, SB 1260 included a ban on paying women to provide eggs for research in order to protect against “undue inducement.” In his veto message, Gov. Brown wrote, “In medical procedures of this kind, genuinely informed consent is difficult because the long-term risks are not adequately known. Putting thousands of dollars on the table only compounds the problem.”
The debate in California around this recent bill illustrates the tensions throughout the reproductive rights and justice movements about what it means to be pro-woman. Where are the boundaries between autonomy and health and safety? Does autonomy mean that we cannot seek reasonable health and safety regulations that affect reproduction?
Women’s health advocates stood on both sides of the issue. Proponents of the bill, which included, in addition to ASRM, California NOW and Planned Parenthood, framed their arguments as a matter of equity—there is already a commercial market in young women’s eggs for other people’s fertility, therefore the restrictions in AB 926 demean women’s decision-making authority. Bill supporters also argue that since men can be paid to provide sperm for research, to not allow women the same opportunity is sexist, ignoring the obvious fact that the procedures for sperm and egg retrieval are very different and involve dramatically different levels of risk. Further, as their argument goes, women can make their own decisions about the risks they are willing to incur.
Women’s health advocates opposing the bill, including our organizations, the Center for Genetics and Society and the Pro-Choice Alliance for Responsible Research, as well as the National Women’s Health Network and the Black Women’s Health Imperative, among others, focused on the lack of long-term safety data regarding egg retrieval, highlighted health and safety concerns about expanding an already burgeoning commercial market in young women’s eggs, and questioned the ability to give informed consent given the lack of data. Anti-choice organizations also opposed the bill, primarily on religious grounds.
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Unfortunately, the media has once again bought into the pro-choice vs. anti-choice dichotomy. Media reports featured anti-choice arguments and portrayed the opposition as only “anti-abortion” or “conservative” groups. Women’s health advocates who opposed the bill were called “fringe leftwing anti-genetics” groups. Gov. Brown has since faced the wrath of the bill’s supporters; he is being attacked for his religious background and is being painted as paternalistic, anti-science, anti-choice, and “regressive to women’s health.” A writer in the Huffington Post accused him of sending the message that “women are as incapable of making decisions for themselves as children and mentally handicapped,” as the blog post’s headline asserts. And the president of California NOW accused the governor of “believing that women are incapable of giving informed consent, incapable of contracting when money is involved.” She added, “It’s a shame Jerry Brown doesn’t trust women.”
As pro-choice women’s health advocates who opposed AB 926, we applaud Gov. Brown’s decision; this could not have been easy for him. His decision was based on the fact that the risks to women who provide eggs outweigh the potential scientific benefits, and the concern that low-income women would be sufficiently swayed by the financial reward without having enough information as to the risks. He based his decision on the fact that there is still not enough reliable information to prove that egg donation is safe—and there is substantial reason to think that it is not.
A recent Institute of Medicine report studied the practice of asking women to provide eggs for research and noted how little research actually exists about the health impact on women:
One of the most striking facts about in vitro fertilization is just how little is known with certainty about the long-term health outcomes for the women who undergo the procedure. There are no registries that track the health of the people who have taken part in IVF, and much of what is known about the risks for women participating in IVF may not be directly applicable to oocyte donors. … Thus it will be important in the coming years to accumulate extensive health data for women whose eggs are harvested and to monitor them for long-term effects. With more data it will be possible to quantify the various risks of oocyte donation much better than can be done today and to put numbers to the risks that a donor may face.
Far from being “a setback for women’s health,” the veto was a victory for women’s health over the increasingly far-reaching fertility industry, which wants access to women’s eggs, regardless of the potential impact on women themselves. Women who provide eggs for research are largely invisible. Investigators only want the eggs as the raw material for further experimentation; the reactions and health outcomes of the healthy young women who provide eggs are not part of their research. As a result, researchers may consciously or subconsciously be less interested in the effects of retrieval on women who supply the eggs, and more interested in obtaining as many eggs as possible. Unfortunately, the more eggs retrieved, the greater the risks to women’s health. Moreover, retrieving more eggs runs counter to emerging best practices in in vitro fertilization (IVF); the American Society for Reproductive Medicine’s own guidelines recommend implementing mild- or no-hormone stimulation for their patients, which results in fewer eggs but increases safety for women.
Nothing has changed since the Institute of Medicine report—there have been no reported long-term studies, and there is only one registry in the country, but most fertility clinics refuse to participate.
For many years, pro-choice advocates, including the Center for Genetics and Society, the Pro-Choice Alliance for Responsible Research, Our Bodies Ourselves, the National Women’s Health Network, and the Alliance for Humane Biotechnology, have been calling for long-term studies on the health effects of egg donation procedures, be it for fertility or research. Until we have data that proves gathering eggs does not endanger the future health or fertility of the women who provide them, we will continue to urge caution and continue our fight to slow down the rapidly growing market of human eggs.
This debate in California is a harbinger for what other states will face. Currently, New York is the only state that explicitly authorizes payments beyond reimbursement for women’s eggs for research. But given the interests of the fertility industry, bills similar to the one just vetoed in California are sure to be introduced in other states—states that most likely don’t have as far-sighted and ethically grounded a governor as Gov. Brown.
Contrary to much of the reporting that’s out there, it is not paternalistic to keep fighting for adequate safety data to help young women make informed choices about providing their eggs. We are hoping that now that egg donors (and former egg donors) are speaking out, policymakers and the public will begin to understand that comprehensive studies on the health effects of providing eggs are essential for young women to make informed choices. In the meantime, we urge the media to stop pitting women against women and to recognize that this is about having sufficient unbiased and data-based information to be able to make an informed decision. We owe this to all the young women who consider providing eggs, be it for fertility or for research.