Page URL: https://www.progress.org.uk/hfeadonating2

Donor Compensation, Reimbursement and Benefits in Kind

This policy document is the second part of a response submitted by the Progress Educational Trust (PET) to the Human Fertilisation and Embryology Authority's Consultation Donating Sperm and Eggs: Have Your Say.


1 (a). In principle, do you think donors should be compensated for expenses they incur during the process of making a donation (for example, the cost of a train fare to the clinic)?

Yes, donors should be compensated for expenses they incur during the process of making a donation.


1 (b). In practice, how do you think a donor's expenses should be compensated?

A fixed amount of money that is the same for all donors
A variable amount of money according to the donor's actual expenses
Other (please specify)

Compensation for expenses needs to be variable in order to reflect the fact that expenses themselves vary depending upon the different circumstances in which people find themselves. The fact that most expenses can be objectively documented - for example in the form of receipts, tickets or ticket stubs - means that they can be fairly assessed.


1 (c). Do you think donors should be compensated for expenses they incur outside the UK (for example, the cost of travel to a clinic in the UK from Asia or Europe)? Please give an explanation of your answer or provide any further comments, including how compensation should apply to overseas donors, whose eggs or sperm are imported in to the UK.

Yes, donors should be compensated for expenses they incur outside the UK.

In practice, it is unlikely that clinics will choose to arrange for donors to travel to the UK from overseas, because it is often possible to arrange for the import of donor gametes. But just because travel by donors from overseas is unlikely, is not grounds to prohibit clinics from compensating donors for travelling from overseas, should clinics so wish.

As for the expenses of overseas donors whose gametes are imported into the UK, it is most likely that these will simply be incorporated into payment from UK clinics to overseas clinics. Should this not be the case, then again, there are no grounds on which UK clinics should be prohibited from compensating overseas donors for expenses.


2 (a). In principle, do you think donors should be compensated for earnings they lose during the process of making a donation (for example, for time off work to attend clinic appointments)?

Yes, donors should be compensated for earnings they lose during the process of making a donation.


2 (b). In practice, how do you think a donor's loss of earnings should be compensated for?

A fixed amount of money that is the same for all donors
A variable amount of money according to the donor's actual expenses
Other (please specify)

Compensation for loss of earnings needs to be variable in order to reflect the fact that loss of earnings themselves vary depending upon the different circumstances in which people find themselves. The fact that loss of earnings can be objectively documented - for example in the form of payslips, letters from employers or tax information - means that they can be fairly assessed.

That said, clinics should operate flexible opening and working hours, which help to ensure that loss of earnings and disruption of work are kept to a minimum. This would be a positive development, which would hopefully become widespread.


3 (a). In principle, do you think donors should be compensated for the disruption and discomfort associated with the process of making a donation (for example, the inconvenience and side effects of hormone injections for egg donors and the inconvenience of numerous clinic visits for sperm donors)?

Yes, donors should be compensated for the disruption and discomfort associated with the process of making a donation.


3 (b). In practice, how do you think a donor should be compensated for the routine disruption and discomfort associated with the process of making a donation?

A fixed amount of money that is the same for all donors
A variable amount of money according to the donor's actual expenses
Other (please specify)

Please note that our response to this question is 'a fixed amount of money that is the same for all sperm donors'. But since the consultation form only allows this option to be selected if it is accompanied by a specified cash figure, and since (for reasons we will go on to explain) it is not for us to specify this cash figure, we have been forced to select the option 'other'.

The option of varying compensation 'according to the donor's actual disruption and discomfort experienced' is not viable, because there is no objective method of ascribing a monetary value to an individual's experience of disruption and discomfort, which is subjective.

The closest thing to such an objective method that exists in the UK is the routine practice in the civil courts of assessing damages for an individual whose deficit falls into the category 'pain, suffering and loss of amenity'. Compensation for routine disruption and discomfort should therefore take the form of a fixed amount of money that is the same for all donors. But rather than specify this amount ourselves, we would encourage the HFEA to seek counsel's opinion as to what fixed amount is commensurate with recent legal precedent.


4 (a). In principle, should donors be offered benefits in kind for their donation?

Yes, donors should be offered benefits in kind for their donation.


4 (b). In practice, what do you think benefits in kind should include?

Reduced waiting time for treatment
Reduced price or free fertility treatment
Reduced price or free storage of sperm or eggs
Other (please specify)

Another benefit in kind, that clinics should be permitted to offer donors, is greater flexibility in appointment times when receiving fertility treatment. This involves more than reduced waiting times - it also means being given greater latitude to specify at what time and/or on what day one would prefer one's appointment to be.

Still another benefit in kind, that clinics should be permitted to offer donors, is free car parking space at or near the clinic where the donation is being made - both while the donation is being made, and thereafter if the donor also receives fertility treatment.

In an ideal scenario, it might be possible to meet demand for donor gametes without offering benefits in kind. Since this is not the case at present, and since we believe that autonomy is the most important principle relating to gamete donation, we conclude that there is scope to encourage donation by offering a variety of benefits in kind, including the options listed above.

Critics of benefits in kind argue that they are disingenuous, because for most intents and purposes they are equivalent to the sort of explicit payment to gamete donors that is currently prohibited in UK law. This is a good point, but rather than interpreting it as meaning that benefits in kind should be limited or prohibited in order to make gamete donation more equitable, we interpret it as meaning that the law should be changed in order to allow payment to gamete donors to be made more openly and honestly.

There is little significant distinction between benefits in kind and explicit payment. Unfortunately, the pretence that there is such a distinction is necessitated by the UK's compliance with European law, which specifies that 'member states shall endeavour to ensure voluntary and unpaid donations of tissues and cells', and that 'donors may receive compensation, which is strictly limited to making good the expenses and inconveniences related to the donation' ('Directive 2004/23/EC on Setting Standards of Quality and Safety for the Donation, Procurement, Testing, Processing, Preservation, Storage and Distribution of Human Tissues And Cells', European Parliament and Council, 31 March 2004).


4 (c). In practice, do you think the value of benefits in kind should be limited and if yes, how should it be limited?

No, the value should not be limited
Yes, the value should not exceed other types of compensation (expenses, loss of earnings, routine disruption and discomfort)
Yes, the value should not exceed that of an average cycle of fertility treatment (for example, £5,000 for a cycle of IVF)
Yes, the value should be limited

We found it difficult to answer this question, because it is asked as part of a consultation whose 'changing landscape of donation' section begins by asking how 'the availability of donated sperm and eggs in the UK' could be increased, and offers 'a change to the law to enable donors to be paid for their donation' as an option. Such a change in the law, which we would support, would change significantly the terms on which we consider whether and how benefits in kind might be limited.

We have therefore decided to answer the present question by assuming that it refers to how the law as it exists should be interpreted, rather than assuming that it refers to the situation after a hypothetical change in the law. We believe that the only consistent and coherent way to interpret the law as it exists is to limit the value of benefits in kind so that they do not exceed the value of other types of compensation. To interpret the law otherwise would be to compound the disingenuousness of maintaining that there is a significant distinction between benefits in kind and explicit payment.

Some benefits in kind, such as reduced waiting time for treatment, may not have a clear monetary value, in which case there is no need to attempt to impose a limit. But unless and until explicit payment to donors becomes legal, benefits in kind that do have clear monetary value should be offered as a substitute for, and not a supplement to, other forms of compensation. The value of these benefits in kind should therefore be determined according to the criteria we specify in our responses above.


5. Do you think any of the compensation, reimbursement and benefit in kind scheme options would have a disproportionate effect on any groups of people on the basis of their age, disability, ethnicity or race, religion, gender or sexual orientation?

The very fact that different options are given for sperm donors and egg donors in the course of this consultation means that these options could, self-evidently, have a disproportionate effect on groups of people on the basis of their gender.

For example, we have argued in our responses above that compensation for the disruption and discomfort associated with the process of making a donation should be commensurate with recent legal precedent. This means that compensation is likely to be greater for women donating eggs than for men donating sperm, because procuring eggs is a more invasive process requiring surgery.

One could argue that the scenario we prefer involves proportion, rather than disproportion, in its treatment of men and women, because it means that the greater disruption and discomfort warrants the greater compensation. But even if this is the case, there will still be some permutation of possible responses to the questions above that, in the final analysis, has a disproportionate effect on groups of people on the basis of their gender.

Whereas the HFEA is obliged by law to treat individuals equally, natural human biology is under no such obligation. Fortunately, there is increasing scope to mitigate the caprices of natural human biology through biomedical intervention. Unfortunately, this scope remains limited.