Previously posted on SSRN.

Abstract

On June 11, 2009, the Empire State Stem Cell Board (“Board”), which administers the $600 million in New York State funds allotted to stem cell research, voted to allocate a portion of those funds to compensate women up to $10,000 for “donating” their eggs for use in stem cell research. The Board's decision makes New York the first state to affirmatively allow state funds to be used to compensate women for providing their eggs for use in stem cell research beyond mere reimbursement of associated medical and other expenses, and, similarly, distinguishes it from most international countries, which either prohibit payment of any amount to women donating their eggs for research purposes or limit compensation to reimbursement for certain expenses. As expected, the Board's decision elicited divergent reactions. Proponents focused on the potential advancements in stem cell research and the inconsistency between permitting payment in the reproductive context and disallowing payment in the research context. Opponents voiced fears that payment might unduly induce women to donate their eggs.

This Article analyzes the Board's decision, first outlining the aims of stem cell research, the logistics of egg production, and why payment is necessary to obtain a sufficient number of eggs for stem cell research purposes; then summarizing the arguments regarding compensation; and finally, relying on insights from those arguments, focusing on the safeguards the Board set out in its written statement. In evaluating the decision, this Article concludes that the Board has not crafted sufficient safeguards to protect against the possibility that women may be unduly influenced to supply their eggs, as it sought to do. Thus, the Article ends by identifying further safeguards that the Board should adopt in order to confront the full expanse of women‟s potential interactions with its compensation program, both as to guarding against undue influence and exploitation, and creating a program that addresses the continuing needs of the women that New York entices with large sums of money to provide their eggs.

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