By Joe Wendleberger, J.D., LL.M. Candidate
On December 8th, 1998, Nkem Chukwu had a baby girl. Twelve days later, on December 20th, she gave birth to seven more babies. One baby weighed less than one pound and died on December 27th. The births occurred a little over a year after Bobbi McCaughey (pronounced McCoy) had septuplets. As is common in all multiple births, the children were born premature. The Chukwu children have done far better than their statistical prognosis, especially considering that heaviest child, at one pound, ten ounces, weighed 30% less than the smallest McCaughey child. All the surviving children weighed more than 500 grams (1 lb, 2 oz.). The results of a Canadian study released in the March 1, 1998 edition of Pediatrics demonstrates the poor odds of survival of a child weighing less than 500 grams. Less than 30% of the 382 newborns in the study were given extraordinary measures, and only 11% survived to age 3 and only 4 avoided major disability.
Dr. Ezekial Emanuel, chairman of the department of clinical bioethics at the National Institutes of Health, published an article in the January 25th, 1999 edition of the New Republic which highlights many of the consequences all premature infants face: 20% have severe disabilities, 21% are mentally retarded, 25% have severe vision problems, and 45% end up in special education classes.
Insurance will pay much of the $2 million or so in medical expenses that the Chukwu family incurred. However, the unmet costs of care are ultimately borne by the public. Even the insurance payments fall to society. Reimbursement from insurance comes from premiums, an obligation shouldered by a smaller segment of the public.
Both the medical complications and the economic costs demand governmental intervention. Regulation is the simplest form of control; however, absent regulation, the costs of the extraordinary medical treatment should be shifted to the clinics that provide the care.
Few laws regulate fertility treatment. Of the laws that do exist, many concern consumer protection issues. For example, protecting recipients from disease by testing donor cells; documenting transfer of embryos to ensure they are not misplanted, stolen, or lost; requiring specific disclosures -- ensuring that consumers who spend their life savings on fertility treatments are not misled by overinflated probabilities of success. Congress enacted legislation to ensure fertility clinics are certified and report their success rates in ratios that can be usefully compared with other clinics. Lack of funding has delayed the implementation of the law, 42 U.S.C. §§ 263a-1 to -7.
In in vitro fertilization (IVF), multiple births can be limited simply by reducing the number of fertilized eggs that are implanted. Multiple studies, including one study covering more than 25,000 women, show no improvement in pregnancy success rate where 4 eggs are implanted compared to 2 or 3 eggs. Other countries limit the number of embryos implanted, but the United States does not. The pressure for more eggs is often driven by the patient who must pay the expense of the procedure. But more is not better -- a simple regulation that limits the number of implanted eggs to 2 would avert pressure from the doctor.
Fertility drugs are more difficult to regulate. Legislatures rarely penalize the personal choices of individuals on sensitive issues such as selective reduction. Nor is it easy to forbid sex when tests show too many eggs are produced by ovarian stimulation. Bioethicist George Annas, professor of law and medicine at the Boston University School of Public Health, has recommended that couples who want infertility drugs but are opposed to reduction should be ineligible for treatment. Annas believes that selective reduction is different from abortion because one is done to ensure delivery of a healthy child. Mrs. Chukwu cited religious reasons for not undergoing selective reduction. Nonetheless, Annas' position makes sense; it is hard to understand how someone who relies on technology to create a life can also insist that God would want her to bear all the fetuses.
In the absence of regulation, I recommend finding the service provider legally liable for medical costs attributed to a multiple birth. The three reasons often cited to hold a manufacturer liable for a defective product are that innocent victims should not suffer, compensation encourages accident prevention, and the manufacturer can spread the loss among those who purchase the product so that the price will reflect the real societal cost of the good. All three principles would apply if the fertility clinic were liable for medical costs of multiple births.
The cost of a product should reflect its true cost. In the Chukwu case, the treatment provided by McGregor Clinic has been subsidized by $2 million dollars in medical expenses, plus thousands in other expenses, as the public stepped in to alleviate the hardship of the multiple birth. The public should not have to bear the costs of mismanagement by a money-making entity nor should the public assume the risks the clinics create.
In a legal action for medical expenses, parents have weak legal standing because they often welcome the risky practices to maximize their chance of pregnancy. The better claim is a third party suit brought by the government, similar to child support actions. Where a single mother requires state support, states pursue the biological father for child support. There is typically an exception for anonymous sperm donors, but few other exceptions. The liability of the father applies even where the needy mother signed a contract absolving the father of child support and even where there may have been misrepresentations about use of contraceptives or failure of contraceptives and refusals to get an abortion. The father created the child and is responsible. Today, the fertility clinic plays as much a role in creation as the traditional father, but it is their conduct that creates the extraordinary risk of multiple births.
Forcing fertility clinics to bear the cost of their practices will lead to safer practices. For IVF procedures, a choice to implant three or more eggs brings consequences for risks in the face of contrary science. In the case of fertility drugs, the hormones can be monitored carefully to determine the number of eggs produced by the ovarian stimulation.
The McGregor Clinic, which provided fertility treatment to Mrs. Chukwu, is reported to have used a procedure that requires a second drug to release the eggs. This second drug should not be given if hormone levels indicate many eggs have been produced. In addition to controlling the technological procedures, fertility clinics are in a better position to select clients. Rather than follow George Annas’ advice and invoke an absolute prohibition against clients that oppose selective reduction, a clinic can make the decision whether to take the risk of certain clients. A clinic is also better able to insure against multi-million dollar liability than a patient. Assisted reproductive technology is a lucrative industry raking in more than $2 billion per year.
Such a system is not without drawbacks. Shifting costs to clinics will result in higher prices. Both insured and uninsured individuals will have less access. This is a controversial area. Many believe child bearing is important enough to warrant the spending of public money. Others are against providing support for a personal decision. The federal government does not require state Medicaid programs to pay for fertility treatment. A handful of states mandate insurance companies to either offer or provide for some level of fertility treatment. The solution is to recognize the controversy over access exists but, until a better solution arises, have individuals pay the true cost of their fertility service.
The medical complications facing the newborn septuplets demand a change in practice. Irresponsible fertility practices present risks to the health of the mother and children and can cost the public millions of dollars. Regulation might be the first choice but has failed thus far. In the absence of regulation, clinics should be responsible for public funded medical expenses.