Adrian Carr
'EGG-BROKERS': THE LEGALITY OF PAYMENT FOR EGG
DONATIONS
ADRIAN CARR
First Year LLB Student of the postgraduate programme, University of the Witwatersrand.
I. INTRODUCTION
The practice of using donor eggs in artificial fertilisation has become increasingly common.1
As a consequence, agencies specialising in sourcing eggs from would-be donors have
emerged. Operating as so-called 'egg brokers', these agencies use advertisements to target
young women, offering 'reimbursement' in exchange for the donation of eggs. The relatively
recent emergence of this practice has meant that its legality has yet to be comprehensively
addressed in the South African context. Focusing on the process of reimbursement for egg
donations, this article will examine whether egg donation agencies operate within the
parameters of the current law. In addition, the article will address the contrasting perspectives
of how the law should be developed in order to better regulate the practice of egg donation.
II. THE LEGAL STATUS OF EGG DONATION
The donation of human gametes, including eggs, is regulated by Chapter 8 of the National
Health Act 61 of 2003(hereinafter referred to as the NHA). According to s 60(4)(a) of the
NHA, it is a criminal offence to trade in gametes. This is in line with the common law
principle that the human body and its parts are res extra commercium; they are outside of the
commercial sphere.2 The donation of gametes is permitted,3 but the legislation prohibits any
person who has donated a gamete from receiving "any form of financial or other reward for
such a donation, except for the reimbursement of reasonable costs incurred by him or her to
provide such a donation"4. Furthermore, according to s 60 (1)(a) of the Act, only a hospital or
authorised institution may receive payment "in respect of the acquisition, supply, importation,
or export of any gamete for or to another person". What the NHA therefore permits is the
altruistic donation of eggs, while simultaneously prohibiting donations for commercial gain.
In addition, the current legislation requires that informed consent to be given by donors prior
to the donation of their gametes.5However, a definition of informed consent is not provided
by the NHA.6 The provisions of the Department of Health Research Ethics Guidelines7 offer
some clarity, stipulating that informed consent requires that the donor be made aware of the
1
John A Robertson 'Compensation and egg donation for research' (2006) 86(6) American Society for
Reproductive Medicine at 1573.
2
S Mahomed, M Nothling-Slabbert, & M S Pepper 'The legal position on the classification of human tissue in
South Africa: Can tissues be owned?' (2013) 6(1) SAJBL 16 at 16.
3
Section 63of the National Health Act 61 of 2003. Henceforth referred to as either the NHA, or the Act.
4
NHA s 60(4)(a).
5
NHA s 55.
6
Emeka Polycarp Amechi 'The Korean cloning scandal and embryonic stem cell research in South Africa: Can
the National Health Act protect women's health and well-being?' (2006) SAJHR 503 at 515.
7
Department of Health: Ethics in Health Research: Principles, Structures and Processes, 2004 Section 2.6.
Adrian Carr
risks and benefits of the donation, understands these risks and benefits, and is able to give
consent to the donation, without coercion through inappropriate incentives. However, it is
worth noting, that this definition of informed consent may be limited to research projects of
the type regulated by the Research Ethics Guidelines, in which case the NHA would be silent
on the issue of coercion in the donation of eggs.
III. THE LEGALITY OF EGG DONATION AGENCIES
Egg donation agencies purport to operate in line with the regulations of the NHA. 8 Whether
the agencies do this in practice is debatable as it is common practice for egg donation
agencies to offer donors 'reimbursement' for their donations.9 The agencies describe the
reimbursement provided as a donation that compensates the donor for the time and effort they
have committed to the donation process.10 As noted beforehand, the NHA allows for donors
to be reimbursed for "reasonable costs" incurred during the donation process. 11 Thus, at a
superficial level, it seems that the current process of reimbursement is legal. However, the
question remains of whether this 'reimbursement' actually amounts to payment offered in
exchange for the donation of eggs, which is prohibited by the NHA, or if it is simply a
donation offered out of gratitude as the egg donation agencies claim it is. According to the
law of contract, a donation and a sale can be distinguished in their operation. In a sale, a
payment is made in exchange for the delivery of a merx.12 By contrast in a donation, the
donee is not required to make a counter performance.13 Thus, the legality of the practice
hinges on whether or not 'reimbursement' is given in exchange for a donor's eggs.
Some agencies, such as Baby-2-Mom, state that donors may receive a 'reduced donation'
if no eggs are extracted from the donor.14 Others, such as Baby Miracles, state that
reimbursement will be provided "on the day when the eggs are retrieved"15, which can be
interpreted as implying that eggs must be retrieved. Thus is seems that the donation provided
by some agencies is dependent on the successful obtaining of the eggs. Furthermore, agencies
offer a standard amount of reimbursement to donors, usually amounting to between R5000
and R6000.16 Such amounts are supposedly given as compensation for time and effort that the
donors committed to the donation, and are deemed to fall within the "reasonable costs"
permitted by the NHA. However, were it truly the case that donations compensated donors
for such costs then the amount of compensation offered should vary between donors in
8
Baby Miracles website, Donor's FAQ page accessed 21 May 2014 at:
http://www.babymiracles.co.za/index.php?option=com_content&view=article&id=55:donorsfaq&catid=35:faq&Itemid=54
9
Baby Miracles website, Donor information page accessed 21 May 2014 at:
http://www.babymiracles.co.za/index.php?option=com_content&view=article&id=57&Itemid=2
10
Ibid.
11
NHA s60(4)(a).
12
Elsje Bonthuys & Neil Broeders 130(3) 'Guidelines for the approval of surrogate motherhood agreements: Ex
parte WH' (2013) SALJ 485 at 492.
13
Ibid.
14
Bonthuys & Broeders op cit note 12 at 492.
15
Baby Miracles website, Donor information op cit note 9.
16
Baby 2 Mom website, Egg donor gift page accessed 21 May 2014 at:
http://baby2mom.co.za/#%2FNews%2F188%2FEgg-Donor-Gift
Adrian Carr
accordance with relative factors such as their medical expenses and travelling costs. 17 Thus,
the reimbursement for reasonable costs permitted by the NHA cannot be covered by a
standard sum as offered by many egg donation agencies. Taken together, these factors
suggest that the payments amount to contracts of sale rather than donations, which would
therefore render the practices of egg donation agencies illegal under the regulations of the
NHA.
IV. THE QUESTION OF LEGALISATION
Though the donation of eggs in exchange for payment is currently illegal in South Africa it is
clear that egg donation agencies have found a way to circumvent the legislation. The
disguising of payment for egg donations is not unique to South Africa. In the United
Kingdom, receiving financial compensation for egg donation is prohibited.18 However, egg
sharing is allowed whereby women undergoing in vitro fertilisation can donate excess eggs in
exchange for a discount to their own treatment.19 In essence this amounts to a payment for
eggs, but the interaction is redefined in order to circumvent the restrictions. This has led to
calls for the legislation to be refined.20 Similarly, the failure of the legislation to properly
regulate the practice in South Africa begs the question of how to remedy the situation. Would
it be beneficial to legalise payment for eggs as contracts of sale and formalise the practice
that agencies are already engaged in, or would the legalisation bring about the very evils that
the National Health Act is trying to prevent?
(a) Constitutional Principles Supporting the Practice
The Preamble of the Constitution commits the law to improving the quality of life of South
African citizens.21 It states that all laws must operate in accordance with the values of dignity,
equality and freedom. Furthermore, the State has the duty to protect, promote, and fulfil the
rights established in the Bill of Rights.22 Based on these constitutional principles, one could
argue that the prohibition of the practice of offering payment in exchange for egg donations is
unconstitutional. At a general level, the banning of the practice of paying for egg donations
violates the principle of contractual autonomy. Freedom of contract has been recognised as a
foundational constitutional value23, and allowing individuals to contract as they please is
supported by the fundamental values of freedom and human dignity.24 More specifically, the
prohibition of the practice can also be said to infringe on a number of constitutionally
protected rights. Among these rights is the right of individuals to bodily autonomy and self17
Bonthuys & Broeders op cit note 12 at 493.
Joanne Ramsey 'Donating eggs for research - should the HFEA reconsider its policy on payments to egg
donors?' (2007) 15 Reproductive BioMedicine Online 25 at 30.
19
Ramsey op cit note 18 at 26.
20
Debora Spar 'The Egg Trade - Making sense of the market for human oocytes' (2007) 356(13) The New
England Journal of Medicine 1289 at 1291.
21
The Constitution of the Republic of South Africa, 1996 Preamble.
22
Ibid s 7(2).
23
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) para 23.
24
Barkhuizen v Napier 2007 (5) SA 323 (CC) paras 15, 28-30, 57.
18
Adrian Carr
determination, which includes the right to make decisions regarding reproduction and the
right of individuals to security and control over their own body.25 Given this right, it is
therefore arguable that by imposing restrictions on payment for egg donations and thus
restricting an individual's right to control over their own body, the NHA contravenes the
rights protected by section 12(2) of the Constitution. Furthermore, preventing women from
selling their eggs can be seen as a violation of the freedom to choose a trade, occupation, or
profession26 in that the prohibition of payment for the donation of eggs unfairly prohibits a
means of income generation for women.
In a country such as South Africa where the majority of the population are poor, the
money earned by women in exchange for donating their eggs may go a long way in allowing
them to escape poverty27, and so improve their quality of life in accordance with the
Preamble of the Constitution. A relevant functional example can be found in India where the
practice of commercial surrogacy, which is arguably far more taxing on women both
physically and emotionally than egg donation, is seen as a survival strategy.28
(b) Danger of Exploitation
The primary concern regarding the legalisation of payment in exchange for the donation of
gametes is the risk that payment may lead to the exploitation of donors. This concern is
amplified in a country such as South Africa where poverty is endemic. The risk of
exploitation stems from notion that legalising payments for donations amounts to the
commodification of eggs. When something is commodified, it is allocated a market price.29
The argument is that paying women to donate their eggs is equivalent to paying for the
gametes themselves, which equates to a transaction in which eggs are allocated a market
value.30 I do not believe this in itself to be a compelling reason not to legalise payment for
eggs. Indeed there are many examples in which economic value is allotted to parts of the
human body that are far less controversial such as personal injury lawsuits. However,
commodification can be dangerous, especially in poor countries where there is a high risk of
inequality of bargaining powers31, when it leads to coercion. Women may be coerced to
donate out of economic need, and as such their decision to donate is not a true exercise of
their free will.32 The temptation of financial gain may encourage impoverished women to
undergo the procedure without fully considering the associated health risks.33
It is worth considering that the targeting of students is common practice among egg
donation agencies. Students who are often burdened by student debts or who are in need of
extra income for other living expenses are especially vulnerable to exploitation by the
agencies Furthermore, the NHA itself does not expressly prohibit coercion in encouraging the
25
The Constitution supra note 21 s 12(2).
Ibid s 22.
27
Amechi op cit note 6 at 510.
28
Caroline Nicholson 'When moral outrage determines a legal response: Surrogacy as labour' (2013) 29(3)
SAJHR 496 at 509.
29
Ramsey op cit note 18 at 28.
30
MJ Radin 'Market inalienability' (1987) 100 Harvard Law Review 1849 at 1851.
31
Allowing contracts in which there is a gross inequality of bargaining powers undermines the Constitutional
values of dignity and equality. See Barkhuizen v Napier 2007 (5) SA 323 (CC) para 59.
32
Ramsey op cit note 18 at 29.
33
Amechi op cit note 6 at 511.
26
Adrian Carr
donation of eggs. Thus, the legalisation of the egg trade has the potential to infringe on the
value of freedom and decrease the quality of life of South African women, which would be
unconscionable in light of the Constitution.
As noted previously, the NHA34 prescribes that all donors must give their informed
consent before they are allowed to donate their eggs. Thus, donors must be informed that the
procedure is painful and can potentially lead to long-term health problems including ovarian
hyper-stimulation syndrome, and possibly cancer.35 While such information may deter many
would-be donors from consenting to the procedure, payments of a sufficiently high level may
lead them to reconsider. This concern has been addressed in the UK, where a cap on
payments for egg donations has been proposed should it ever be legalised so that payments
cannot be so high as to become coercive.36 However, payment caps may not offer sufficient
protection in South Africa. The uncovering of illegal organ trafficking in 2003 highlights the
risks that the impoverished are willing to take in order to gain money for their needs
regardless of the associated health risks.37 If poor South Africans are willing to sell their
organs for financial gain, then there is a distinct possibility that poor South African women
would be willing to sell their eggs, even if it places their health at risk.
A final concern is that allowing agencies to purchase eggs from donors would amount to
organ or tissue trafficking. However, the definition, of an organ according to the NHA
excludes gametes38, and so payment for gametes is technically excluded from organ
trafficking. However, that does not mean that South Africa is not at risk from trafficking of
another form. In third world countries there exists the tendency for markets to place lower
prices on products, and for regulatory mechanisms to operate at a reduced efficiency due to
corruption or a lack of funds.39 As such, multinational agencies may turn to South Africa as a
cheap source of eggs and in doing so 'mine' the population for eggs and in doing so
undermine the dignity of women by treating them as means to an end. Such exploitation has
already occurred in South Korea.40 This risk is even greater in light of recent developments in
terms of the storing of eggs, which allows for them to be cheaply exported en masse.41
(c) Future Developments
Though many oppose the legalisation of the egg trade, the reality is that it is already an
established industry in South Africa. As such, I support the legalisation of the practice for the
simple reason that it would afford vulnerable donors the protection of the law. If, however
payments for egg donations by agencies are legalised, then the regulations of the NHA need
to be updated and refined. An example of the deficiencies in the current legislation can be
34
Supra note 3 s 55(a).
Amechi op cit note 6 at 509.
36
Ramsey op cit note 18 at 30.
37
T Broughton 'SA is organ trade Mecca' The Mercury (2 April 2004).
38
Supra note 3 s 1.
39
Ramsey op cit note 18 at 29.
40
Amechi op cit note 6 at 503.
41
Michal Nahman 'Reverse traffic: intersecting inequalities in human egg donation' (2011) 23 Reproductive
BioMedicine Online 626 at 628.
35
Adrian Carr
found in Schedule 6(a) of the Regulations Relating to Artificial Fertilisation of Persons,
which states that a gamete donor may not donate gametes "if a maximum of six children have
been conceived through the artificial fertilisation using the gametes of that gamete donor".
While this regulation attempts to limit the number of gametes that an individual may donate,
and so reduce the risk of exploitation, it fails to take into account that not all eggs are
retrieved for the purpose of artificial fertilisation. Embryonic stem cell research is permitted
in South Africa42, and the practice involves the use of a high number of donor eggs.
Therefore, the law should be updated to accommodate such practices. Furthermore, the issue
of payment must be addressed. While the risk of coercion remains, placing a cap on the
amount payable to donors may go some way to limit this risk. In order to monitor this, the
legislation should also provide that agencies produce detailed records of their expenditure,
which would go some way to preventing coercive payments from being disguised.43
V. CONCLUSION
While payment for eggs is illegal in South Africa, the continued operation of egg donation
agencies is evidence that the current legislation is ineffective at regulating the practice. In
order to redress this, the NHA must be fleshed out beyond its current regulations, specifically
with regards to reasonable compensation, informed consent, and coercion. Whether these new
regulations should increase the stringency with which the practice is controlled or allow for
its legalisation is debateable. Regardless, the primary focus of any development should
remain the protection of women from exploitation, and the guarding of their fundamental
rights.
42
43
NHA supra note 3 s 57.
Bonthuys & Broeders op cit note 12 at 493.