In the civil case of Kylee Gilman v. Edward Ryan, MD and Giving Hope LLC, “having amicably settled this matter as between them, [all parties] hereby stipulate and agree to entry of the attached order to dismiss this litigation…” The words “as between them” mean that Kylee will never be able to discuss the particulars of her lawsuit. As a result, we will never know who was guilty of what. Nor will we know the amount of money she was awarded in her settlement. What we do know is that she was paid for her silence.
While there was much fanfare in the news when Kylee was first harmed and filed legal action, because of the confidentiality agreement, there will be no big news story on Kylee’s settlement. After all, what is there to report when the details are all sealed? Still, it is important to document publicly the facts of the complaint, which was filed in the fourth judicial circuit court in Duval County, Florida, where Kylee was living at the time she entered into an agreement to sell her eggs.
Her complaint was against Edward Ryan, a physician licensed to practice medicine in Canada, and Giving Hope LLC, an egg donor agency located in Idaho but doing business throughout the United States. The complaint charged that Dr. Ryan and Giving Hope were engaged in the business of circumventing and/or violating Canada’s Assisted Human Reproduction Act, which prohibits the sale of human eggs. Giving Hope and Dr. Ryan’s business consisted of performing in vitro fertilization procedures in Canada using eggs purchased from young women in the United States who traveled to Canada to have their eggs harvested. The women were paid after they returned to the US.
In early 2011, Kylee responded to an ad placed on Giving Hope’s website and was accepted into their donor program. In June 2011, she was told that a Canadian couple had selected her. As Kylee states in Eggsploitation, she was told it was destiny that this couple had found her. She was told that Dr. Ryan in Toronto would be the primary doctor, and the “monitoring clinic” in Florida would be the Jacksonville Center for Reproductive Medicine (JCRM). In October 2011, Giving Hope wrote to Kylee:
we are having some difficulty with medications due to the fact that an American pharmacy will not take a Canadian prescription and an American doctor will not write a script for a Canadian doctor . . . craziness. Anyways . . . we might have you literally fly up to Canada for a day and get the meds and fly back.
Kylee was instructed to not mention to anyone the purpose of her trip or that she was being paid for her eggs.
Kylee flew to Canada and saw Dr. Ryan on October 31, 2011. He gave her a vial of Gonal-F and syringes for her to inject herself over the next several days. She also received pre-filled syringes of Orgalutran to prevent premature ovulation. She then flew back to Jacksonville, where JCRM did her follow-up. On November 4, JCRM reported to Dr. Ryan that Kylee was having “an excessive response to the hormone stimulation and that she was producing a large number of ova.”
On November 7, Giving Hope arranged travel for Kylee to return to Toronto, where she would receive the final “trigger shot” of hCG to prepare her body for the egg retrieval, which requires a surgical procedure. It should be noted that this all took place over just eight days—two trips to Canada and aggressive ovarian stimulation.
Kylee reported to Giving Hope on November 10 that she had a “whole lot of pain” in her abdomen. As I have seen often with the many egg donors I have interviewed, Kylee was told this was normal. On November 11, Dr. Ryan performed the egg retrieval and harvested an astounding forty-five eggs. As her complaint states, “she was therefore at immediate risk of ovarian hyperstimulation syndrome (OHSS), a serious medical emergency.”
On the same day, Kylee boarded her flight to return to Florida. Dr. Ryan informed Kylee that he too was flying to Florida that same day and would be available by phone should she need him. In Eggsploitation, Kylee describes in horrific details of how “unbelievably sick” she was when she left Toronto:
I was throwing up on the jetway. I was throwing up on the airplane. I was throwing up in between flights. I remember having to lie down on the airport carpet. It’s gross even thinking about it, but I was just that sick.
The next day, a friend of Kylee’s contacted Dr. Ryan to explain how ill she was, describing severe abdominal pain and distention. Dr. Ryan said she didn’t need to go to the hospital but should drink Gatorade and take the pain medicine he’d prescribed for her. Eventually, Kylee’s friend called 911, and she was taken to the Jacksonville Mayo Clinic and diagnosed with severe OHSS that resulted in a cerebrovascular accident (a stroke).
Soon after, Giving Hope paid Kylee $5,500 for her eggs. Kylee’s civil complaint charged that as a “direct and proximate result of the negligence” of Dr. Ryan and Giving Hope, Kylee suffered severe OHSS, a stroke, paralysis, pleural effusion requiring a chest tube to drain the fluid, and severe abdominal distention requiring an abdominal drain. She asked for damages “in excess of $75,000.”
I asked Alison Motluk, a Canadian journalist who has written much about egg donation, what she thought of Kylee’s case being settled. Motluk told me, “I’m not a fan of confidential settlements. People are interested in knowing, in dollar terms, what the two sides agreed were reasonable damages. Unfortunately, [in this case] we can’t.”
Other scholars agree that confidential settlements often have negative effects. Ralph Nader and Wesley J. Smith write in their book, NO CONTEST: Corporate Lawyers and the Perversion of Justice in America,
Confidential settlements force desperate injury victims and their lawyers into a wrenching, corrupt bargain: personal remuneration at the expense of the public good. Confidential settlements also stymie the justice system’s vital role of warning society about safety hazards and stigmatizing, and thereby deterring, unethical conduct.
I was unable to reach anyone at Giving Hope to see if they have changed any of their practices in light of the unfortunate outcome of Kylee’s case. In Kylee’s complaint, Giving Hope was charged with creating a dangerous course of treatment “by arranging for the remote management and monitoring of the donor from Canada,” negligently advising Kylee on the health problems she was experiencing, and not providing her with “truly independent, competent counsel” to understand her egg donation agreement.
Kylee’s case is so similar to the many egg donors that I have interviewed over the years. Having financial need, a young woman sees and responds to an advertisement full of flowery language about helping make dreams come true, or, as in Kylee’s case, about “giving hope” and “making the impossible possible.” If the donor is even told about any risks or side effects, they are downplayed. Keep in mind that whatever information is given to a young woman who is donating (selling) her eggs comes from parties with decisive conflicts of interest. They solely represent the buyers, not the sellers. When all the physical signs and tests show something is wrong, the donor is told “this is normal,” “drink Gatorade,” “eat protein.”
One would hope Dr. Ryan and Giving Hope’s attempts to circumvent Canadian law would bring about stricter enforcement of the practices surrounding egg donation. It would be even better if this case could reveal to the public that these practices constitute reckless endangerment of young women’s health and well-being, and that no one should prey upon vulnerable cash-strapped women for their eggs. What happened to Kylee—and thousands of others like her—is real, serious, and dangerous. Wouldn’t it be better if we simply stopped this altogether?