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Human Egg Donors Certified in Class Action

OAKLAND, Calif. (CN) - A federal judge certified in part a class of egg donors who claim the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology fixed prices for human eggs.

Chief Magistrate Judge Joseph Spero on Feb. 3 also denied the plaintiffs' motion to exclude the testimony of Dr. Insoo Hyun, and granted the defendants' motion to exclude the testimony of Dr. Hal Singer.

The rulings came after a Jan. 23 hearing.

In the antitrust class action filed in 2011, lead plaintiff Justine Levy claimed that the defendants established maximum compensation rules in violation of the Sherman Act, "in an effort to keep egg donor compensation artificially low and to retain more revenue."

The Society for Assisted Reproductive Technology's 393 member clinics constitute 85 percent of those practicing assisted reproductive technology in the United States, according to the complaint.

Levy also claimed that egg donors are paid the same hourly rate as sperm donors, though egg donation procedures are lengthy, painful and potentially dangerous, while sperm donations are not.

Levy's complaint was merged with a similar complaint from Lindsay Kamakahi, the case's other lead plaintiff, in a consolidated amended complaint filed in 2012.

The plaintiffs asked that the class be defined as all women who, from April 12, 2007 to the present, donated eggs to any SART member clinic or assisted-reproduction egg agency that agreed to follow the ASRM's maximum price rules.

Spero granted this request, but denied the plaintiffs' request to certify a subclass for injunctive relief due to lack of a class representative with standing.

Kamakahi and Levy also moved to exclude the opinion of Hyun, a bioethicist.

The defendants submitted his report discussing principles of medical ethics and justifying maximum compensation guidelines by those principles.

Hyun argued that "removing any upper limits on compensation for donors' burdens would make it very difficult to protect altruism from being pushed entirely aside inadvertently by market forces."

The plaintiffs argued that Hyun's argument was irrelevant to issues of class certification and that his conclusions are not based on scientific method.

But Spero ruled that "however inartfully presented, Dr. Hyun's report is sufficiently relevant and reliable to be admissible for the very limited purpose for which defendants seek to use it."

The ASRM and SART moved to exclude the opinion of Singer, an expert economist whose report addresses compensation data from a single egg donation agency during periods when the agency agreed to comply with maximum compensation guidelines and periods when it did not.

They claimed that Singer's reports are "both unreliable and irrelevant."

Spero ruled that "to the extent that Dr. Singer can model the effects of the Guidelines only within the specific agencies that he examined, such models are irrelevant to class certification."

Neither side could be reached for comment.

Kamakahi and Levy are represented by Bryan Clobes, of Cafferty Clobes in Philadelphia.

The defendants are represented by Megan Dixon, of Hogan Lovells in San Francisco.

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