Who Needs More than Eight Babies? A Legal Perspective

An op-ed by Naomi Cahn, author of Test Tube Families: Why the Fertility Market Needs Legal Representation (NYU Press 2009), and Jennifer Collins. Cross-posted (with permission from the author) from PrawfsBlawg.

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 will explore these issues further in a forthcoming essay.

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5 thoughts on “Who Needs More than Eight Babies? A Legal Perspective

  1. I am 81years old, I grow up 4 children on my own, without any help ,after 15 years I remarried and adopt another child ,in my father family living in Egypt they were 18 children, in my mother living in Nth Africa, they were 14 children, all without outside help, very happy , one of my antie had 14 children living in Marocco.How terrible for Danya Suleman to be treated the way the people do.If anyone should be questionned is her Doctor.I am sure they should be lonely grand mother happy to help Ms Suleman, giving love and understanding to her and her children.
    I know if I was living in America I will!

  2. While I very much understand the concern about multiple pregnancies, taking away the patient and doctors right to decide what is right for a specific patient unfairly restricts patients/personal reproductive choice/medical decisions. There will always be outliers to the norm in any area who will push limits and take risks, it is not reasonable to restrict everyone on that basis. A case such as the octuplets is very rare and less about IVF and more about an unstable patient who should not have been treated at all (and one lousy doctor in my view). The issue of how many embryos were transferred in that case is really not the issue we should be focusing on in the overall context of the situation. Sometimes it isn’t unreasonable to put back more than would normally be prudent, such as in the cases of multiple failed cycles, very poor embryo quality, age, and other individual factors that suggest a very low likelihood of success. However, if procedures were covered by insurance, I think it would be more reasonable to discuss restrictions. Another way to deal with the concern over an outright restriction would be to have a review process (ethics committee) to consider cases that might warrant allowing for higher numbers than the conservative norm be used (as long as it is not adding to the financial burden of patients).

  3. Maggie,
    Since when is the normal human desire to have genetic offspring something requiring psychological intervention/testing? Infertile persons are not more “obsessed” with their own genes than any other person wishing to have children because they pursue medical treatment to assist them in having a child. Infertile couples are no more responsible for the needs of adopted children than any other member of society (and certainly not based on the fact that they have a medical problem!). And wanting to have a baby and wanting to parent are often two distinct desires, there is nothing wrong with wanting both. And adoption is not a problem=solution equation for infertility. Adoption is not right for everyone. Adoption needs to be undertaken for the right reasons, at the right time, to meet the needs of the child.

  4. There needs to be some legal definition of “infertility.” Someone who already has six children is not, by any stretch of the imagination, infertile. Also, there should be more intense psychological exams for people who are so obsessed with reproducing their own genes. There are thousands of children already extant who need homes. Don’t say adoption takes too long or costs too much….people spend years of their lives & tens of thousands of dollars undergoing fertility treatments that fail. Do you want to “have a baby” or do you want to be a parent?

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