The Sale of Donors’ Eggs: A Case Study of Why Congress Must Modify the Capital Asset Definition

46 Pages Posted: 3 Aug 2014

Date Written: August 1, 1999


Female infertility plagues a large segment of the reproductive population. In response to this problem, doctors have developed several techniques to fertilize and implant eggs into women that cannot produce their own. These techniques have heightened the demand for donors' eggs. Infertility clinics now offer donors lucrative financial incentives to sell their eggs.

During the egg retrieval process, donors must dedicate several hours of their time and endure some physical discomfort. For political reasons, infertility clinics assert that they compensate donors' for their service, rather than their eggs. Consistent with their political position, infertility clinics issue tax information returns to donors indicating that the donors' role is service oriented.

A more compelling argument can be made, however, that infertility clinics compensate donors not for their services, but for their eggs. Because eggs constitute property, donors thus experience a gain when they sell their eggs. This gain qualifies for preferential tax treatment because donors' eggs fall squarely within the broad scope of the "capital asset" definition provided under the Internal Revenue Code ("Code"). Based upon its policy objectives, however, Congress would likely not sanction this outcome.

Keywords: Tax

JEL Classification: K34

Suggested Citation

Soled, Jay, The Sale of Donors’ Eggs: A Case Study of Why Congress Must Modify the Capital Asset Definition (August 1, 1999). UC Davis Law Review, Vol. 32, p. 919, 1999, Available at SSRN:

Jay Soled (Contact Author)

Rutgers University ( email )

1 Washington Park
Newark, NJ 07901-1825
United States
(973) 353-1727 (Phone)

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