Academic journal article Texas Law Review

Putting Too Many (Fertilized) Eggs in One Basket: Methods of Reducing Multifetal Pregnancies in the United States*

Academic journal article Texas Law Review

Putting Too Many (Fertilized) Eggs in One Basket: Methods of Reducing Multifetal Pregnancies in the United States*

Article excerpt

I. Introduction

In January 2009, California resident Nadia Suleman gave birth to the longest surviving octuplets in American history.1 A public furor erupted when it was discovered that the mother was unemployed, single, and had conceived all fourteen of her children with the help of in vitro fertilization (IVF).2 Questions about how one woman was impregnated with eight embryos prompted the California Medical Board to investigate Michael Kamrava, Suleman's fertility doctor.3 Ms. Suleman claims that Dr. Kamrava transferred six frozen embryos into her, two of which twinned.4 The implantation of six embryos exceeded by threefold the number suggested by the American Society for Reproductive Medicine (ASRM) guidelines, which recommended that at most two embryos be transferred to a woman under the age of thirty-five "in the absence of extraordinary circumstances."5 The ASRM also suggests that women in this age group who have had prior success with IVF should consider transferring only one embryo.6

The ASRM guidelines were updated in 2009 but would provide exactly the same guidance in this case.7 The ASRM promulgates the voluntary guidelines to inform patients and clinicians in the absence of state or federal statutes regulating the IVF process.8 The Society recommends a number of embryos based on the female patient's age and pregnancy prognosis.9 Factors affecting the favorability of the prognosis include the quality of the embryos created, the success of failure of past IVF, and the availability of excess embryos for cryopreservation.10 If embryos present favorable morphological characteristics, a patient has previously undergone a successful !VF round, or if excess embryos are available for freezing, then fewer need to be transferred.

For women under thirty-five years old, the guidelines suggest a transfer of one or two embryos; for women thirty-five to thirty-seven years old, two to three embryos; for women thirty-eight to forty years old, three to four embryos; and for women over forty years old, up to five embryos.11 The guidelines also distinguish between cleavage-stage embryos (for which numbers are reported above) and blastocysts, of which fewer should be transferred for each age group.12 The ASRM includes an exception for physicians to transfer more than the recommended number of embryos on an individualized basis.13 However, to comply with the guidelines, the treating physician must note in the patient's medical records the justification for transferring more than the recommended number of embryos.14

While clinics are not legally bound to follow the guidelines, they can face consequences for noncompliance.15 But some commentators think the guidelines are not enough to prevent multiple births and have recently renewed the call for governmental regulation restricting the number of embryos that can be transferred in a single IVF cycle.16 This Note presents an alternate, nonlegislative solution to reduce multifetal pregnancies in the United States. At least three forces surrounding the IVF process incentivize patients and doctors to implant more embryos than necessary during each round of treatment.17 By redirecting these forces, Americans can reduce the number of embryos transferred without committing to a legislated limit.18

Part II of this Note discusses the societal and medical problems associated with multifetal pregnancies. Part III describes the incentives that push patients and clinicians to transfer multiple embryos in one fertility cycle. These incentives include the physical and emotional burden associated with IVF, the level of insurance coverage provided for assisted reproductive procedures like IVF, and the method of publishing clinic success rates. Part IV evaluates the effectiveness of the legislation that has been passed in other countries, and Part V presents the case for alternate methods of solving the multifetal pregnancy problem: providing patients with better information about the risks of multifetal pregnancies, improving insurance coverage for IVF patients, and implementing the BESST (Birth Emphasizing a Successful Singleton at Term) standard for publication of clinic success rates. …

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