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Monday, February 16, 2009

Eight is Enough.

N.B. This post is by Naomi Cahn (GW) and Jennifer Collins (WFU).

If children are cheaper by the dozen, then how much for 14?  Nadya Suleman is the mother of the new California octuplets (and 6 other children, all under the age of eight). She loves children, and she is very happy about the situation.  She is fielding offers to appear on talk shows to tell her story, and carefully evaluating her next steps, according to her spokesperson.

      The public response, however, has been far less enthusiastic, to put it mildly.  Nadya Suleman has allegedly received death threats, and commentators have begun to call for increased regulation of fertility treatment.  These calls for increased regulation fall into two main categories.  First, some commentators have called for increased regulation of the in vitro fertilization procedure, which is the fertility treatment that led to Ms Suleman’s pregnancy, and in particular the number of embryos that can be transferred during the procedure.  Others, however, have called for restricting access to the procedure itself.  For example, Margaret Somerville, writing in the Ottawa Citizen newpaper, suggests that we need to consider whether prospective users of fertility treatment would be “suitable” parents, taking  factors like family size and financial resources into account.

      Let’s start with questions about increased regulation of the IVF process.  How did Ms. Suleman’s particular procedure result in 8 babies?  

We can try to imagine the conversation between Ms. Suleman and her doctor about how many embryos should be placed in her body.  As the doctor might have told her, the American Society for Reproductive Medicine (the ASRM is a membership organization of more than 8000 professionals involved in the fertility field) has developed guidelines for the number of embryos that should be returned.  Limits on the number of embryos protect the health of the mother and of the children.  Twins and triplets are at higher risk than single babies for a variety of health problems: they are more likely to be born early, to suffer from cerebral palsy, and to die in infancy.  The ASRM takes credit that its guidelines have helped reduce the number of embryos transferred and therefore resulted in a decrease in the number of multiple births.

      For a woman under the age of 35, like Ms. Suleman, the recommendation is that the physician return no more than 2 embryos.  In a statement that it issued on January 30, the organization affirmed, “we can say that transferring eight embryos in an IVF cycle is well beyond our guidelines.”   We know that most fertility doctors respect the ASRM’s guidance in this area, and many would refuse to transfer too many embryos.  They know the risks, and they’ve seen what happens when too many embryos are transferred.  But the guidelines are not binding, unlike in some other countries, they are not laws that are backed up with penalties, and fertility doctors don’t need to follow them. 

      We suggest that we need to pass laws that support the fertility industry while also protecting the interests of patients, children, and the public. Artificial reproductive technology has provided enormous comfort to people who want children.  There are over 400 fertility clinics in the United States, and more than 1 million women have a fertility-related medical appointment each year.  Upwards of 50,000 children are born each year through artificial reproductive technology. But that doesn’t mean that we can’t prevent doctors and their patients from creating instant families of eight – plus.  But there are relatively few national laws that apply to fertility clinics, and state regulation is piecemeal. 

      Governments in other countries have placed mandatory limits on the number of embryos that can be transferred.  In England, no more than 2 embryos can be transferred; in Switzerland and Germany, it is 3.  We need to follow their lead, and set limits.  In addition, we need to increase insurance coverage for these procedures, which will reduce the pressure that many women feel to transfer a large number of embryos because they may be able to afford only one shot at the procedure.

      As we think about how much leeway to give patients undergoing fertility treatments, and the doctors who advise them, we need to consider the consequences.  Yes, this affects the doctor/patient relationship.  And it might seem harsh to say no to people who are desperately wishing for babies and begging for more embryos.  But these limits protect the health of everyone involved.  Mandatory limits also protect doctors, requiring them to say no even if they are pressured by patients who want as many chances as possible to have a child, and who are willing to risk a multiple birth pregnancy. 

      Although we support limits on the numbers of embryos transferred during any single procedure, we cannot support proposals calling for restricting access to fertility treatments based on the financial resources of the prospective parents and/or the number of children they already have.  We do not set limits on family size for parents who are able to bear children without the aid of medical technology, and we do not require them to pass some sort of financial litmus test.  We also worry that evaluating the “suitability” of prospective users of fertility treatment will lead to the exclusion of individuals who are not part of a heterosexual married couple, certainly a phenomenon that we have seen in the adoption context.  We explore these issues further in a forthcoming essay. 

Posted by Dan Markel on February 16, 2009 at 12:51 AM in Current Affairs | Permalink

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I plan to have a lot of babies too and when I do, I'll raise them on welfare.

That's what it's for.

Learn to enjoy paying my bills.


http://notnadya.blogspot.com/

Posted by: Not Nadya | Feb 15, 2009 9:28:53 PM

I just wanted to throw out some concerns about this sort of regulation (though I applaud your desire that all parents be treated equally regardless of status). Doctors should be permitted to use their judgment on a case-by-case basis. To regulate fertility treatments with bright-line cutoffs would be similar to the one-size-fits-all rules that insurance companies place on treatment choices for disease. It simply does not work on the ground.

I have now reached the age where it seems that half the women I know need IVF in order to get pregnant, so I have watched many friends go through the process and learned a bit about it. Depending upon the extent of one's fertility decline, it is not uncommon to transfer 5-6 embryos and fail to get pregnant at all. If we were to limit the number that could be transferred rather than let doctors determine what is needed for each patient, many women would not get pregnant at all who otherwise might, which is quite sad for those who desperately want a child.

The response to this, of course, is to base it on age, and already there are guidelines associated with age (but because they are not the law, a doctor still has the freedom to distinguish among patients of the same age). Age is one strong indicator of fertility. However, while the average IVF with a 33 year old will have better results than the average IVF with a 40 year old, these are just averages. Patients vary a great deal, especially in the realm of fertility. Sometimes women in their 40's get pregnant with no medical intervention, and sometimes women in their early 30's have multiple failed IVF treatments. For this reason, doctors need discretion to treat their patients individually.

As for Ms. Suleman, if I were her family or a friend I might have discouraged her choice to have one more child after the first 6 (likely sooner than 6). That said, I do not believe that she intended to have more than one additional child, maybe two. As I understand it, she had several serious fertility issues and had transferred about the same number of embryos each time. In the past, these transfers usually led to only one viable child. This time, she was even dealing with frozen embryos, which have a much lower success rate than fresh. She was not sure it would succeed at all and had already decided to give up if it did not. The odds of this happening were freakishly low. Once it did, selective reduction would have been the medically best choice, but she had the right to morally object to it, just as I believe women should have the right to choose the other way.

Not to get too far off track, but mathematical theory even plays a role here (random events often cluster). As a reproductive endocrinologist once explained, a woman with declined fertility has a certain number of good eggs left, mixed in with all the bad ones. These good eggs can be released any time. It is not unusual, say when using a non-IVF injectible protocol leading to 4 eggs per cycle, to have all 4 be bad for several cycles in a row and then 3 good ones at once lead to triplets. Fertility treatment is far from predictable - not an exact science.

Ultimately, I think that the blame for the octuplets has gone too far, in light of the realities of fertility treatment. This kind of treatment (and the ability to transfer more embryos when a woman's eggs are known to be bad) leads to many desperately wanted singleton or twin babies that otherwise would not exist. I believe that this benefit to many thousands of families outweighs the unfortunate fluke once in a while. Of course, the way to have the best of both worlds (better success rates with fewer higher order births) would be if everyone were comfortable with selective reduction, but we cannot force it on anyone (at least its availability renders these extreme results far less common and mostly just to those who do object). Regulating the number of embryos a doctor could transfer would lead to far lower success rates overall and widespread family heartbreak.

Posted by: Kalyani Robbins | Feb 16, 2009 12:49:14 PM

I think this whole situation highlights a few metaethical issues in the biological-medical arena.

The idea that the ethical considerations of a particular procedure can be treated in isolation from (or are conceptually distinct from) its societal impact is false. There is no such thing as an irreducible sphere of individual choice. Decisions have consequences.

Our entire legal system is constructed around the natural way that a child is born. There are limits to the rate at which a woman can have children. She normally must be involved with a man who puts himself on the hook for child support when he chooses to impregnate her. And the parents put themselves on the hook for taking care of the child.

So much of this is thrown out of wack with IVF, some of which might be mitigated by imposing draconian liability on the donors in question, with the ultimate hope that the number of donors decreases drastically. Other bits of this could be mitigated with conditions on child custody for single mothers.

Posted by: AndyK | Feb 16, 2009 2:20:34 PM

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