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Judging Octomom
From The Hastings Center Report
Author: Josephine Johnston
Published: 06/30/2009

Abstract
When Nadya Suleman gave birth to eight babies in January 2009, the story ignited a media frenzy--first because the babies were only the second set of octuplets born in the United States, and later because of the irregularities of their conception by in vitro fertilization and the personal details of their mother's life. Hidden beneath the sensational aspects of the story, though, are a number of fundamental ethical, medical, and legal issues concerning assisted reproductive technologies. Three essays examine these questions.

Content
Just over a week after her eight babies were delivered by caesarean section in a California hospital, Nadya Suleman explained to an NBC reporter that her extraordinary pregnancy was the result of in vitro fertilization. Having conceived her first six children--four singletons and one set of twins--using IVF, Suleman said she visited her fertility doctor in 2008 and insisted that he transfer all of her six remaining frozen embryos at once. After warning her of the risks associated with a multiple birth, he'd done as she asked. All six embryos implanted, and two divided to create twins.

Awe at the successful delivery of her children quickly turned to ire when the press discovered that Suleman not only has six children already, but is an unemployed single mother on public assistance. Many feel she has irresponsibly created more mouths than she can possibly feed, and that the taxpayers of California are going to be left holding the babies, as it were.

Like many familiar with the ins and outs of fertility treatment, I initially assumed that the octuplets resulted from Suleman's body "overreacting" to fertility medications. I guessed that her physician had either failed to monitor her egg development adequately before inseminating her, or that she had intercourse around the time her body released a large number of eggs. The idea that IVF--the most controllable form of assisted reproductive technology--had been used in such clear contravention of current professional guidelines and practice was almost unthinkable.

In the early years of IVF, it was not unusual to transfer six embryos to a woman in the hope that just one would successfully implant. But as the technology has improved, multiple births have become more frequent. While high-order multiples were welcomed by some patients, a few sued their physicians for the costs and harms to mothers and infants associated with complicated premature births. In 1992, the Centers for Disease Control and Prevention began collecting statistics from fertility clinics and reporting clinic-specific success rates that highlighted not just the number of pregnancies achieved and infants born, but also the number and degree of multiple births. Among other goals, the CDC's reports aim to improve the safety of assisted reproduction technologies for women and their babies by pinpointing clinics that generate high numbers of multiples. As noted on the program's Web site, "Multiple birth is associated with poor infant and maternal health outcomes, including pregnancy complications, preterm delivery, low birth weight, congenital malformations, and infant death."

The American Society for Reproductive Medicine also seeks to reduce the number of multiples born to its members' patients. To this end it recommends that when treating women of Nadya Suleman's age (under thirtyfive years) who have a favorable prognosis, physicians consider transferring only one and no more than two blastocysts (embryos at five or six days of development).[1] There is clearly some wiggle room here--for example, if Suleman's doctor was transferring embryos at day three of development (which are less likely to survive than embryos that have developed in the lab to the blastocyst stage), he might have argued for transferring two or three rather than one or two. But in a thirty-three-year-old woman who had successfully used IVF already, transferring six embryos is so far beyond the guidelines as to ignore them completely. And maybe Suleman's physician did simply ignore them: as John Robertson points out in his essay in this issue, the guidelines have few teeth.

When everyone else is reducing the number of embryo transfers, how might we understand the decision of Suleman's physician to transfer six? Maybe he is simply unskilled--his clinic does have very low success rates, even by the crudest measure, so perhaps, based on his past performance, he expected fewer embryos to implant (and he likely did not expect two of them to twin).

Or maybe he was listening not to ASRM guidelines or evolutions in clinical practice, but to his patient. Just exactly how much control fertility patients should have over the procedures they undergo is hotly debated, in bioethics and beyond. Patients have what is known as "dispositional authority" over their embryos--they can decide whether unused embryos should be frozen, whether either parent can use them in the event of death or divorce, and whether unused frozen embryos should eventually be discarded, donated to other would-be parents, or donated to research. Good clinics ask their patients to consider these issues even before embryos are made.

But dispositional authority does not require physicians to accede to any and all patient demands. Suleman's physician would have been well within his legal and moral rights if he refused a request that so flagrantly violated professional guidelines. Indeed, I believe he should have refused to transfer all six embryos at once because to do so was so very dangerous for both Suleman and her babies. The harder question, in my view, is whether he should have refused to treat her at all on account of her circumstances, even if she had come to him with a more reasonable request.

Many have noted that fertility clinics primarily treat the men and women having trouble conceiving, rather than the children they hope to bear. And many have contrasted the way fertility clinics frame their services and understand their goals with the way adoption agencies operate. Some in bioethics have argued that Suleman's fertility doctor should have turned her away on account of her existing obligations and her financial status; in essence, they contend that something like an adoption standard should have been applied to her.[2]

Fertility clinics aim to help people have babies, while adoption services aim to place parentless children in safe, loving homes. In the fertility clinic, doctors perform detailed assessments of both patient fertility and physical readiness to gestate a baby. They may learn something about the intended parent or parents' psychological well-being, but clinics do not require parent training or a home study, nor do social workers assess would-be parents' fitness, run criminal background checks, speak with references, or inquire into financial stability. While one can argue that the cost of fertility procedures can act as a de facto financial screen--most patients are probably financially stable enough to have adequate insurance or to be able to pay out-of-pocket--it's a very light and potentially uninformative substitute for the kind of detailed information adoption agencies gather.

Because adoption cases usually concern an existing child, state and private agencies may be legally--and, I would argue, morally--bound to investigate would-be parents. But while ASRM's ethics committee advises that physicians may decide to withhold services if they believe patients will be unable to provide adequate childrearing, it also makes clear that physicians are not morally obliged to do so except "when significant harm to future children is likely."[3] This seems a difficult standard to meet.

If the United States ever decided to regulate assisted reproduction, it could mandate that future children's welfare be taken into account, as is done in the United Kingdom. But as ASRM's ethics committee notes, clinics are not currently well-equipped to make such assessments, and when they do, their judgments may betray discrimination: in the past they have been held legally and morally blameworthy for denying services to single people and gay men and women.[4]

Fertility patients in the United States are treated more or less like anyone else trying to conceive: no preapproval is required. And this is probably the way it should stay. Fertility clinics are not suited to judge who will make a good parent. ASRM is right that clinics should refuse to provide treatment to individuals or couples it learns have "uncontrolled psychiatric illness, substance abuse, on-going physical or emotional abuse, or a history of perpetuating physical or emotional abuse" (none of which seem to apply to Suleman).[5] But unless we have good evidence that the fertility industry is creating a child welfare problem, I see no reason to require clinics to probe deeper into their patients' circumstances than they currently do. While I agree that assisted reproduction invites a more careful approach to procreation than is taken "in the wild," I would be very suspicious of a new rule concerning parental fitness that stems from one highly unusual case. We know there are children in need of safer, healthier, and more supportive homes in this country, but we have little reason to think that asking fertility clinics to assess the fitness of wouldbe parents would do anything to address that problem.


References
The Practice Committee of the Society for Assisted Reproductive Technology, The American Society for Reproductive Medicine, "Guidelines on the Number of Embryos Transferred," Fertility and Sterility 82, Suppl. 1 (2004): 1-2.
T. Murray, "Commentary: Are Eight Babies More Than Enough?" CNN.com - Breaking News, U.S., World, Weather, Entertainment & Video News, February 4, 2009; A. Caplan, "Ethics and Octuplets: Society Is Responsible," Philadelphia Inquirer, February 6, 2009, Ethics and octuplets: Society is responsible | Philadelphia Inquirer | 02/06/2009.
The Ethics Committee of the American Society for Reproductive Medicine, "Child-Rearing Ability and the Provision of Fertility Services," Fertility and Sterility 82 (2004): 564.
B.E.S. Robinson, "Birds Do it. Bees Do It. So Why Not Single Women and Lesbians?" Bioethics 11 (1997): 217; North Coast Women's Care Medical Group v. San Diego County Superior Court 189 P 3d 959 (Cal. 2008).
The Ethics Committee of the American Society for Reproductive Medicine, "Child-Rearing Ability and the Provision of Fertility Services."

The Hastings Center Report. 2009;39
 
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