Financing fertility

Harvard Journal on Legislation

Volumn 47, Issue 1, 2010, Pages 115-165

  Hawkins, Jim ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 77949749576     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (309)

1. Jody Lynée Madeira explains the process of an IVF cycle: IVF consists of four main steps. First, the woman uses injectible medications to stimulate the ovaries to produce multiple eggs, and undergoes frequent monitoring via ultrasound and blood hormone level measurements. When the eggs are mature, the woman uses a "trigger" hCG shot and shortly thereafter undergoes a surgical procedure performed under anesthesia to remove the eggs from her ovaries by means of an ultrasound-guided needle inserted into the ovarian follicles through the vaginal wall. The "harvested" eggs are then placed in petri dishes together with sperm to facilitate fertilization and form embryos; the average fertilization rate is from 60 to 70 percent. Three or five days after the egg removal procedure, one or more embryos are transferred back into the woman's uterus with the goal of establishing a pregnancy. The transfer procedure is minor, requires no anesthesia, and takes about five minutes. Any remaining embryos that are not transferred are then frozen. A pregnancy test is administered 14 days after the egg retrieval.
2. Jody Lynée Madeira, Common Misconceptions: Closing the Gap Between Legal Constructions of Infertile Women and Women Considering Abortion (Aug. 8, 2009) (unpublished manuscript, on file with the author).
3. Joshua Kleinfeld, Comment, Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury", 115 YALE L.J. 237, 244 n.30 (2005).
4. See Thomas D. Flanigan, Assisted Reproductive Technologies and Insurance Under the Americans with Disabilities Act of 1990, 38 BRANDEIS L.J. 777, 777 (2000) (noting that ninety-three percent of health insurance plans exclude coverage for fertility treatments).
5. See DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 30 (2006) ("In this market, therefore, price acts harshly as a constraint on demand. The desire is there, as we know. So, increasingly, is the supply. Yet the price of this supply is still too high for many potential buyers, leaving supply and demand to meet at a point well below their full potential.").
6. See Anna Mulrine, Making Babies, U.S. NEWS & WORLD REP., Sept. 27, 2004, at 60 ("Spending on IVF alone is up 50 percent in the past five years, to over $1 billion last year."). 6 See discussion infra Part I.A.
7. See discussion infra Parts II.A, II.B.
8. See infra Part II.A.
9. See, e.g., MAURA A. RYAN, ETHICS AND ECONOMICS OF ASSISTED REPRODUCTION: THE COST OF LONGING (2001) (analyzing the economics of fertility treatments and suggesting regulations without mentioning financing);
10. Lyria Bennett Moses, Understanding Legal Responses to Technological Change: The Example of In Vitro Fertilization, 6 MINN. J. L. SCI. & TECH. 505, 526-28 (2005) (listing reasons to regulate IVF without mentioning financing).
11. SART - Society for Assisted Reproductive Technology, http://www.sart.org (last visited Nov. 4, 2009).
12. See infra app. I.
13. A few clinics began offering refund programs in 1994 and 1995. It appears that Shady Grove, a clinic in Maryland, was the first to begin offering IVF refund programs in 1994.
14. Kristen Gerencher, The Promise of a Child, MARKETWATCH, July 19, 2000, http://www.marketwatch.com/story/investing-in-the-promise-of-a-child. Dr. Widra at Shady Grove developed the program to help uninsured people "hedge their bets on infertility treatments." Id. Dr. Sher, a doctor at the Sher Institute of Reproductive Medicine, has consistently pushed the boundaries of fertility practice, was also a pioneer in IVF refund programs; he began offering his IVF refund program in 1995. Judith VandeWater, Fertility Doctors Use Advertising and Refund Offers to Woo Couples; Pricing Packages, Money-Back Guarantees and Unconventional Methods Have Caused Some Physicians to Become Concerned for Patients' Health When the Emotional and Financial Stakes Are High, ST. LOUIS POST-DISPATCH, Feb. 5, 2001, at BP10. Finally, Dr. Jacques Stassart in Minnesota, also began offering eighty percent IVF refunds in 1995.
15. Chen May Yee & Josephine Marcotty, Miracles for Sale: With Rising Competition, Some IVF Clinics are Offering Money-Back Guarantees and Going Farther Afield to Look for Patients, STAR TRIB., Oct. 23, 2007, at A1.
16. Mary E. Abusief et al., Assessment of United States Fertility Clinic Websites According to the American Society for Reproductive Medicine (ASRM)/Society for Assisted Reproductive Technology (SART) Guidelines, 87 FERTILITY & STERILITY 88, 88-89 (2007).
17. IntegraMed Fertility Network, The Attain IVF Program, http://www.integramedfertility.com/inmdweb/content/cons/shared.jsp (last visited Oct. 2, 2009).
18. San Diego Fertility Center, San Diego IVF (In Vitro Fertilization) Guarantee, http://www.sdfertility.com/guarantee.htm (last visited Oct. 2, 2009).
19. See Marie McCullough, Clinics Promise Fertilization or Refund; No Guarantees When It Comes to Pregnancy? Think Again, PHILA. INQUIRER, Aug. 17, 2003, at A1.
20. Washington Fertility Center, Baby Guarantee or Your Money Back, http://www.washingtonfertility.com/pages/guarantee.html (last visited Oct. 4, 2009) [hereinafter Washington Fertility Baby Guarantee].
21. Genetics and IVF Institute, Guarantee Programs, http://www.givf.com/financialprograms/guaranteeprograms.cfm (last visited Oct. 4, 2009).
22. See Abusief et al., Assessment of United States Fertility Clinic Websites According to the American Society for Reproductive Medicine (ASRM)/Society for Assisted Reproductive Technology (SART) Guidelines, 87 FERTILITY & STERILITY 88, 88-89 (2007). (using this definition of IVF refund programs). When patients do not use an IVF refund program, they pay fees for each cycle of IVF individually. These arrangements are called fee-for-service arrangements.
23. See David Hyman & Charles Silver, You Get What You Pay For: Result-Based Compensation for Health Care, 58 WASH. & LEE L. REV. 1427, 1441-42 (2001).
24. The Fertility Website Study found that 93.3% (n=126) of the websites advertising IVF refund programs offered actual refunds to patients.
25. Society for Assisted Reproductive Technology, SART National Summary, http://www.sart.org/find_frm.html (last visited Nov. 3, 2009).
26. ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
27. These are cycles using embryos that have been recently created and have never been frozen.
28. ART Three Cycle Option, supra note 22. 25 A fresh cycle can yield frozen embryos if more embryos are created than the patient uses in the cycle. Davis v. Davis, 842 S.W.2d 588, 592 (Tenn. 1992) ("Using [cryogenic preservation], if more ova are aspirated and fertilized than needed, the conceptive product may be cryogenically preserved (frozen in nitrogen and stored at sub-zero temperatures) for later transfer if the transfer performed immediately does not result in a pregnancy.").
29. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
30. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
31. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
32. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
33. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
34. ART Fertility Program of Alabama's restrictions on patients' choices are not unique.
35. See Judith VandeWater, Fertility Doctors Use Advertising and Refund Offers to Woo Couples; Pricing Packages, Money-Back Guarantees and Unconventional Methods Have Caused Some Physicians to Become Concerned for Patients' Health When the Emotional and Financial Stakes Are High, ST. LOUIS POST-DISPATCH, Feb. 5, 2001, at BP10 ("Ahlering said the women in the financial risk-sharing program, who represent roughly half the practice, must follow the doctor's recommended course of treatment-even if the prescriptive is, like immune globulin or Viagra, out of the mainstream.");
36. University of Iowa Health Care, About IOWArranty, http://www.uihealthcare.com/depts/med/obgyn/infertility/sharerisk/aboutu s.html (last visited Jan. 30, 2009) ("However, as risk sharing participants, you must agree to the fertilization of all available mature oocytes (eggs), and culturing (incubating) more embryos than transferred to allow the selection of the best possible embryos for transfer. You must agree to the freezing (cryopreservation) of residual embryos.").
37. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
38. The ART Fertility Program of Alabama's inclusion of ICSI and assisted embryo hatching is atypical. Most IVF refund programs exclude these charges. E.g., Fertility Specialists of Dallas, IVF SharedDreams Program, http://www.fertilitydallas.com/IVF_fertility_dallas_shared_dreams.html (last visited Nov. 3, 2009);
39. The Center for Advanced Reproductive Medicine & Fertility, In Vitro Fertilization Refund Plan, http://www.infertilitydocs.com/infertility/about.html#3 (last visited Nov. 3, 2009).
40. The clinic offers a separate monitoring package, which only includes monitoring costs, for an additional $3,000 non-refundable fee. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
41. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
42. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
43. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
44. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
45. ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option]. Other termination clauses are structured differently than ART Fertility's clause.
46. See, e.g., Advanced Fertility Center of Chicago, IVF Cost Plan with Risk Sharing and Money Back If It Doesn't Work, http://www.advancedfertility.com/ivfriskshare.htm (last visited Oct. 4, 2009) [hereinafter Chicago IVF Cost Plan with Risk Sharing] ("We reserve the right to terminate the patient's participation after each completed cycle (this is very rare). Likewise, the couple has the right to terminate its participation after each completed cycle (after all fresh and frozen embryos are transferred). If our center terminates the couple's shared risk refund program early (before the completion of all 3 or 4 fresh IVF attempts), the refundable amount will be returned to the couple. Likewise, the couple is also free to quit the program before they complete all of their allotted fresh cycles. The refundable portion is given to the couple if they are not pregnant and all frozen embryos have been transferred.").
47. ART Three Cycle Option, ART Three Cycle Option, ART Fertility Program of Alabama, Three Cycle Option, http://octane8.cre8ive.com/art2/default.aspx?id=387 (last visited Oct. 4, 2009) [hereinafter ART Three Cycle Option].
48. Melynda Dovel Wilcox, Having an In Vitro Baby Can Be Easier Than Figuring Out How to Pay the Bill, KIPLINGER'S PERS. FIN., Sept. 2002, available at http://www.nobabyonboard.com/miracle.html.
49. IntegraMed is listed on NASDAQ under the symbol INMD.
50. IntegraMed Am., Inc., Annual Report (Form 10-K), at 2 (Mar. 14, 2008) [hereinafter IntegraMed 2008 10-K].
51. IntegraMed Am., Inc., Annual Report (Form 10-K). at 3-4.
52. IntegraMed Am., Inc., Annual Report (Form 10-K). at 5.
53. Telephone Interview with Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview].
54. Telephone Interview with Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview]
55. IntegraMed 2008 10-K, IntegraMed Am., Inc., Annual Report (Form 10-K), at 4.
56. Schumann Interview, Telephone Interview with Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview].
57. Schumann Interview, Telephone Interview with Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview].
58. Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30.
59. IntegraMed 2008 10-K, IntegraMed Am., Inc., Annual Report (Form 10-K), at 20.
60. Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30.
61. Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30.
62. Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30.
63. Lisa Barrett Mann, A Baby, or Cash Back; Some IVF Centers Offer Risk-Sharing Deals, WASH. POST, May 18, 2004, at F1.
64. Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30.
65. E-mail from David Adamson, Chief Executive Officer, Advanced Reproductive Care, Inc., to author (Mar. 1, 2009, 14:34 CST) [hereinafter E-mail from Adamson] (on file with author).
66. E-mail from David Adamson, Chief Executive Officer, Advanced Reproductive Care, Inc., to author (Mar. 1, 2009, 14:34 CST) [hereinafter E-mail from Adamson] (on file with author).
67. The percentage of clinics offering each type of program adds up to more than 100% when combined because a small number of clinics offer refunds through multiple providers.
68. See Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30
69. See Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 30. ("But some physicians and groups disapprove of money-back guarantees, saying such arrangements push infertility physicians to over treat patients, contributing to the problem of multiple births. That's one reason ARC administers the refund rather than leaving it up to the physicians providing care. 'Our physicians don't necessarily know who purchased a guarantee,' Dr. Adamson said."); Mann, supra note 55 ("[ARC, as an independent company,] ensures that doctors' decisions are based on good medicine, not remuneration...."); Wilcox, supra note 40 ("Both [IntegraMed and ARC] sidestep the conflict-of-interest issue by having patients purchase the packaged plan through the network rather than through the individual clinic. The network then reimburses the clinic for each round of IVF, just as an insurance company would do."); Yee & Marcotty, supra note 12 ("Even as warranty programs spread around the country, Kuneck's clinic held back. He says he isn't comfortable with the clinic acting as financier. In 2004, the clinic began offering warranties through a New York company, to maintain a wall between business and medicine. 'This is a gentlemanly way of doing it,' Kuneck said. 'So I never have to question a medical choice based on finance.'").
70. IntegraMed 2008 10-K, IntegraMed Am., Inc., Annual Report (Form 10-K), at 4.
71. E-mail from Adamson, Chief Executive Officer, Advanced Reproductive Care, Inc., to author (Mar. 1, 2009, 14:34 CST) [hereinafter E-mail from Adamson] (on file with author).
72. Schumann Interview, Telephone Interview with Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview].
73. See John A. Robertson & Theodore J. Schneyer, Professional Self-Regulation and Shared-Risk Programs for In Vitro Fertilization, 25 J.L. MED. & ETHICS 283, 288-89 (1997) (arguing that clinics offering shared-risk have no greater incentive to transfer extra embryos or prescribe additional medicine than clinics operating on a fee-for-service basis because both have a powerful incentive to maximize their success rates).
74. See generally Hyman& Silver, Assessment of United States Fertility Clinic Websites According to the American Society for Reproductive Medicine (ASRM)/Society for Assisted Reproductive Technology (SART) Guidelines, 87 FERTILITY & STERILITY 88, 88-89 (2007)
75. David A. Hyman & Charles Silver, IVF Shared-Risk Programs, 26 J.L. MED. & ETHICS 79 (1998).
76. For such an argument, see Thomas H. Murray, Money-Back Guarantees for IVF: An Ethical Critique, 25 J.L. MED. & ETHICS 292 (1997), which analogizes IVF to divorce and claims that contingent fees lead us to regard children as products.
77. See Shaun D. Pattinson, Current Legislation in Europe, in THE REGULATION OF ASSISTED REPRODUCTIVE TECHNOLOGY 7, 8 (Jennifer Gunning & Helen Szoke eds., 2003) ("The paucity of legislation indicates that many countries are relying on alternative regulatory mech anisms. Legislation is, after all, only one of many possible regulatory responses, ranging from constitutional provision to professional self-regulation.");
78. Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 HASTINGS L.J. 1007, 1031 (1996) ("[T]he standard approach has been to refrain from legal intervention, and in effect, to delegate the regulatory function to medicine.").
79. Moses A, Understanding Legal Responses to Technological Change: The Example of In Vitro Fertilization, at 508 ("Our intuition that the law faces problems following the introduction of a new technology is correct, and is reflected in metaphors of law struggling to keep up. However, the reflexive response that legislation is required to facilitate the law's adaptation to technological change may be wrong; legislation is inferior to the alternatives in some circumstances.").
80. See Judith F. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609, 626-27 (1997).
81. See Stacey A. Huse, The Need for Regulation in the Fertility Industry, 35 U. OF LOUISVILLE J. OF FAM. L. 555, 556 (1996-97) ("Medical professional organizations adopt guidelines for the industry, but membership in the organizations is voluntary and the guidelines are not mandatory.").
82. See Note, In Vitro Fertilization: Insurance and Consumer Protection, 109 HARV. L. REV. 2092, 2104 (1996) ("SART does not independently verify that its member clinics conform to its guidelines."). For a more detailed analysis,
83. see Moses, Understanding Legal Responses to Technological Change: The Example of In Vitro Fertilization, at 544-45 ("Although compliance with ASRM, SART, and ACOG standards is not generally compulsory, it may be required in particular circumstances. Some health insurance contracts that cover the cost of IVF for patients, for example, limit coverage to IVF performed by members of organizations such as SART or to procedures complying with guidelines issued by ACOG or ASRM. The reason for this limitation can often be found in state insurance requirements. However, a person with resources and the willingness to travel can obtain treatment deemed unethical by the relevant professional societies. Also, many of the guidelines are themselves worded as advice rather than mandatory requirements.").
84. The Ethics Committee of the American Society for Reproductive Medicine, Shared-Risk or Refund Programs in Assisted Reproduction, 82 FERTILITY & STERILITY S249, S250 (2004) [hereinafter ASRM Ethics Committee Report].
85. The Fertility Website Study's findings are similar to a recent study by doctors Abusief, Hornstein, and Jain, which tested the level of compliance with ASRM/SART general advertising standards.
86. Abusief et al., Assessment of United States Fertility Clinic Websites According to the American Society for Reproductive Medicine (ASRM)/Society for Assisted Reproductive Technology (SART) Guidelines, 87 FERTILITY & STERILITY 88, 88-89 (2007). They found that "the majority of fertility clinic websites do not follow the 2004 SART/ASRM mandatory guidelines for advertising." Id. At 91. They report: Success rates were published on 51% of fertility clinic websites (117 private, 31 academic), the majority of which were private clinics (p=.025). The percentage of fertility clinic websites adhering to ASRM/SART guidelines was low in all categories (ranging from 2.8% to 54.5% in private centers and 1.3% to 37.2% in academic centers). Fewer than half of all clinics publishing success rates (35.5% of private clinics and 21.8% of academic clinics, p=.037) provided information about the numerator and denominator used for calculation. Live-birth data were reported on a minority of both private and academic clinics (p=.468). The ASRM/SART guideline-mandated disclaimer statement, "A comparison of success rates may not be meaningful because patient medical characteristics and treatment approaches may vary from clinic to clinic," (10) was present on only 65 clinic websites (43.9%) publishing success rates.
87. ee infra Part II.C.1.
88. See ASRM Ethics Committee Report, Shared-Risk or Refund Programs in Assisted Reproduction, 82 FERTILITY & STERILITY S249, S250 (2004) [hereinafter ASRM Ethics Committee Report], at S250.
89. See ASRM Ethics Committee Report, Shared-Risk or Refund Programs in Assisted Reproduction, 82 FERTILITY & STERILITY S249, S250 (2004) [hereinafter ASRM Ethics Committee Report], at S250
90. See ASRM Ethics Committee Report, Shared-Risk or Refund Programs in Assisted Reproduction, 82 FERTILITY & STERILITY S249, S250 (2004) [hereinafter ASRM Ethics Committee Report], at S250
91. See, e.g., CAL. CONST. art. XV, § 1, cl. 1 (limiting interest rates to ten percent for loans used for "personal, family, or household purposes").
92. 12 C.F.R. § 226.24 (2008).
93. Pub. L. No. 90-321, tit. I, 82 Stat. 146, 146-59 (1968) (codified as amended at 15 U.S.C. §§ 1601-1667f (2006)).
94. JAMES E. LUDLAM, INFORMED CONSENT 6 (1978).
95. See Eric Flisser et al., Patient-Friendly IVF: How Should It Be Defined?, 88 FERTILITY & STERILITY 547, 548 (2007) ("Because the doctor-patient relationship is based on mutual trust and respect, physicians are expected to be above personal material interests in the pursuit of the best medical care for patients.").
96. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 928 (1994).
97. See Richard S. Saver, Medical Research and Intangible Harm, 74 U. CIN. L. REV. 941, 969 (2006).
98. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 928 (1994). at 929.
99. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 928 (1994). at 929-30.
100. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 928 (1994). at 929
101. See infra Part II.C.5.
102. IntegraMed claims that its IVF refund program is a word of mouth driven business. IntegraMed America, Inc., Investor Overview - 3Q 2008, available at http://library.corporateir.net/library/10/108/108428/items/318486/5B828F 72-AB4B-4965-B662-607DE4ED3277_INMDInvestorPPT112108.pdf (last visited Feb. 20, 2009).
103. See infra note 201 and accompanying text.
104. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609, 626-27 (1997). at 663.
105. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609, 626-27 (1997). at 663
106. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, at 917.
107. See BLACK'S LAW DICTIONARY 779 (6th ed. 1990) (defining informed consent as requiring the disclosures to permit a patient "faced with a choice of undergoing the proposed treat ment, or alternative treatment, or none at all, [to] intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits").
108. See BLACK'S LAW DICTIONARY 779 (6th ed. 1990) (defining informed consent as requiring the disclosures to permit a patient "faced with a choice of undergoing the proposed treat ment, or alternative treatment, or none at all, [to] intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits").
109. See Jim Hawkins, Doctors as Bankers: Evidence from Fertility Markets, 84 TUL. L. REV. (forthcoming 2010) (manuscript at 40-44), available at http://ssrn.com/abstract=1435610.
110. For instance, one clinic calls its refund program the "Fertility Cost Warranty Program." Reproductive Medicine & Infertility Associates, Financial Matters, http://www.rmia.com/pages/fina_warranty.asp (last visited Aug. 11, 2009).
111. Pub. L. No. 93-637, 88 Stat. 2183 (1975) (codified at 15 U.S.C. §§ 2301-12 (2006)).
112. E. Allan Farnsworth, Developments in Contract Law During the 1980's: The Top Ten, 41 CASE W. RES. L. REV. 203, 222 (1990).
113. 15 U.S.C. § 2302(b)(1)(A); 16 C.F.R. § 702.3(a)-(b) (2009).
114. 15 U.S.C. § 2310(d)(1).
115. 15 U.S.C. § 2301(1).
116. Cf. James C. McKay, Jr., UCITA and the Consumer: A Response to Professor Braucher, CYBERSPACE LAW., Nov. 2000, at 9 (noting it is unclear whether the Act applies to software or other computer information because these items are not plainly tangible).
117. U.C.C. § 2-105(1) (2005) ("'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale.").
118. See, e.g., Naiditch v. Shaf Home Builders, Inc., 512 N.E.2d 1027, 1038 (Ill. App. Ct. 1987); Humber v. Morton, 426 S.W.2d 554 (Tex. 1968).
119. See, e.g., Harmon v. Dawson, 530 N.E.2d 564, 567 (Ill. App. Ct. 1988); Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987).
120. See Lee Kissman, Comment, Revised Article 2 and Mixed Goods/Information Transactions: Implications for Courts, 44 SANTA CLARA L. REV. 561, 577 (2004)
121. Fink v. DeClassis, 745 F. Supp. 509, 516 (N.D. Ill. 1990).
122. See, e.g., Webb v. Clark, 546 P.2d 1078, 1080 (Or. 1976) (en banc).
123. See generally John L. Hill, Introduction, Consumer Protection Symposium, 8 ST. MARY'S L.J. 609 (1977) (describing the inadequacies of the common law fraud cause of action).
124. See generally U.C.C. § 1-304 (2005) (imposing an obligation of good faith on parties in the performance and enforcement of contracts, but not in the formation of contracts)
125. See Brock v. Baskin Robbins, USA, Co., No. 5:99-CV-274, 2003 U.S. Dist. LEXIS 3840, at *14-18 (E.D. Tex. Jan. 17, 2003) (holding a franchisee could not recover under either the Louisiana or Texas deceptive trade acts for a franchisor's deceptive conduct because the franchise was not a "consumer" under the law since the purchase only involved intangible rights); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363 (Tex. 1987) (noting that, as of 1987, eight states' courts had determined that securities transactions were not covered by their unfair trade practices acts and one state had determined they were covered); Michael L. Rustad, Making UCITA More Consumer-Friendly, 18 J. MARSHALL J. COMPUTER & INFO. L. 547, 551-52 (1999) (explaining that consumer protection laws were developed for durable goods, so their application to intangibles such as software is uncertain).
126. TEX. BUS. & COM. CODE ANN. § 17.45 (Vernon 2007).
127. See Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169 (Tex. 1980) (holding money is intangible and not a good covered by the Texas Deceptive Trade Practices Act)
128. See, e.g., IDAHO CODE ANN. § 48-602(6) (West 2009) (stating the Idaho Consumer Protection Act applies to "property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value"); TENN. CODE ANN. § 47-18-103(2) (West 2009) (stating the Tennessee Consumer Protection Act applies to "property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value").
129. See Idaho First Nat'l Bank v. Wells, 596 P.2d 429, 432 (Idaho 1979) ("Appellants argue that their guaranteeing of the Powell Feed Lots' loan constituted a purchase of goods thus falling under the purview of the act. We disagree with appellants' analysis of the scope of the Idaho Consumer Protection Act. Although 'goods' defined under the act include intangible property which could encompass money, it would take a strained construction of the act to be able to hold that the signing of a personal guarantee for a loan to a corporation was a 'purchase of goods.'").
130. See discussion infra Part II.C.4.
131. Mary Jo Feldstein, Creative Financing Plans Aimed at Steep Infertility Treatment Costs, ST. PAUL PIONEER PRESS (Minn.), Sept. 3, 2006, at 7E.
132. The medical services patients receive do not vary at all if the patient pays for each cycle individually or participates in a refund plan.
133. See, e.g., Debra Gordon, Fertility Clinic in Los Angeles Offers a Baby or Your Money Back, THE ORANGE COUNTY REG., Mar. 27, 1998, available at http://www.encyclopedia.com/ doc/1G1-20433572.html (reporting that a couple would recommend a refund program despite the fact they spent $5300 more using it); NBC Nightly News: Fertility Clinics with a MoneyBack Guarantee, (NBC television broadcast Aug. 1, 1998) (reporting that a couple who knew that they overspent had "no regrets" about their experience).
134. Ann Wozencraft, It's a Baby, Or It's Your Money Back, N.Y. TIMES, Aug. 25, 1996, § 3, at 1 (internal quotations omitted).
135. Mann, supra note 55 (internal quotations omitted).
136. INTEGRAMED AM., INC., SHARED RISK REFUND CASE STUDIES VOL. 4, 2 (2006), available at http://www.seattlefertility.com/downloads/sharedRiskCaseStudies.pdf (last visited Oct. 24, 2009).
137. Reporting that ninety-six percent of general customers would recommend IntegraMed compared to the ninety percent who get pregnant on the first try).
138. Reporting that ninety-six percent of general customers would recommend IntegraMed compared to the ninety percent who get pregnant on the first try). at 4.
139. Justin Martin, A Baby Or Your Money Back, FORTUNE, Nov. 10, 2003, at 198[B], available at http://money.cnn.com/magazines/fsb/fsb_archive/2003/11/01/358298/index.h tm.
140. Ian Murray, IVF Clinic Offers 'No Baby, No Fee' Treatment Deal, TIMES (London), Sept. 10, 1998, at 2.
141. E.g., There's Something About Mary, CHAIN STORE AGE EXECUTIVE WITH SHOPPING CENTER AGE, at 39 (Dec. 1, 2001).
142. The author conducted a search on September 29, 2009 on LexisNexis with the following terms: "(in vitro fertilization or IVF) and (refund or shared-risk or fee-for-service or resultbased-compensation-agreement)". It generated no relevant responses.
143. Schumann Interview, supra note 45.
144. Alice D. Domar et al., The Prevalence and Predictability of Depression in Infertile Women, 58 FERTILITY & STERILITY 1158, 1158, 1161-1162 (1992).
145. See Hawkins, supra note 96, at 27-31.
146. See discussion supra Part I.A.
147. See, e.g., Mann, supra note 55 ("Leanna and Dan both had health insurance, but their policies did not cover IVF. In 1999 they signed up for the shared-risk program at Shady Grove Fertility Reproductive Science Center in Rockville. The Currys paid an upfront fee of $20,000-roughly what it would have cost them to make two IVF attempts using the conventional pay-as-you-go approach."); Martin, supra note 126 ("If IVF works on the first cycle, the patient has obviously overpaid."); Wozencraft, supra note 121 ("That said, had she become pregnant on her first try, she would have been better off by far with the standard plan. Had she become pregnant on the second try, her costs under either plan would have been comparable."); Yee & Marcotty, supra note 12 (suggesting IVF refund programs are a bad deal only to those who get pregnant after one cycle: "By paying up front for a package of three tries, patients who got pregnant on the first try subsidized those who got pregnant on a third.").
148. In one important paper, David Schmittlein and Donald Morrison claim that IVF clinics market a la carte programs at $7500 per attempt and IVF refund programs at $15,000. David Schmittlein & Donald Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. SCI. 1618, 1618 (2003). These figures reflect the two times to break even heuristic exactly. Patients who take two attempts to become pregnant pay $15,000 whether they use a la carte programs or the IVF refund programs. This assumption is essential to Schmittlein and Morrison's claim that patients who have failed with non-IVF fertility treatments should participate in IVF refund programs because they will break even after two attempts. Id. at 1633; see also Amy B. Monahan, Value-Based Mandated Health Benefits, 80 U. COLO. L. REV. 127, 165 n.160 (2009) (stating that "[i]f a shared-risk patient is successful in her first round of IVF, she ends up paying considerably more for the treatment than she would have if she had not enrolled in the shared-risk program," but also noting that "[t]he nation's largest infertility treatment network, IntegraMed, charges slightly more than the cost of two IVF cycles to participate").
149. See, e.g., Houston IVF, Financing Infertility, http://www.houstonivf.net/houstonivf/about/financinginfertility.asp (last visited Oct. 9, 2009) ("Patients who take home a baby after one IVF cycle pay more than patients not participating in the Program, but conversely, patients who fail to take a baby home pay much less than comparable couples not participating in the Attain Program."); Mid-Iowa Fertility, Cost Sharing Plus Program, http://www.midiowa fertility.com/financial.asp#costsharing (last visited Oct. 24, 2009) ("It is possible that if a pregnancy is achieved in the first cycle, the couple will have spent much more than they would have otherwise by paying for the cycle individually. That is an element that must be considered when looking into program participation. While there is the possibility that it would cost more if success is achieved in the first cycle, the program also provides significant savings if pregnancy is not achieved or is achieved on a later cycle."). The Fertility Website Study found at least twenty-three websites that claim that a patient will pay more using the refund program if pregnancy is achieved on the first attempt. Though this information was not coded in the Fertility Website Study, clinics making these claims were examined because researchers were asked to state any disadvantages the website disclosed regarding the use of the refund program.
150. See, e.g., Laurie Smith Anderson, Center Offers Shared Risk Program for Infertility Treatment, THE ADVOC. (Baton Rouge, La.), Jan. 26, 2005, at 1-C ("In response to patient requests for a shared risk program, the Woman's Center for Fertility and Advanced Reproductive Medicine is now offering a program where qualified couples can pay for two in vitro fertilization procedures and receive three, if necessary. 'It's a hedge against failure,' said Dr. Bobby F. Webster, the center's medical director. 'If in vitro works in the first attempt, the couple will have paid more than if they had not chosen this option. If it works the second time, they break even. The third time, they save money. And, if it doesn't work after three attempts, they will receive a significant refund so that they can still pursue adoption or other options.'"); Mann, supra note 55 ("Shady Grove Fertility's brochure lays out the costs for IVF: A single cycle of IVF, on a pay-as-you-go basis, costs $8,500 plus a substantial additional amount for the required drugs. It's an additional $1,350 per cycle to freeze embryos, and $2,150 for each implantation of thawed embryos. Under the shared-risk program, the patient pays $20,000 up front, which is a global fee covering all IVF, embryos freezing and implantations.'If the patient gets pregnant on the first cycle, they pay more than they would for fee-for-service,' said Stillman [of Shady Grove]. 'At the second cycle, it's about break-even. At three or four, it's a savings. Our risk is that, if the patient doesn't get pregnant, we've spent our resources without remuneration.'")
151. See The Early Show: Dr. David Adamson of Advanced Reproductive Services and Parise and Jon Pak, Dr. Adamson's Patients, Discuss the Fertility Treatment Services Offered at Advanced Reproductive Services (CBS News television broadcast Sept. 27, 2000) [hereinafter The Early Show] ("We've put the packages of services together. And that's a three-cycle IVF option. So a patient can get one, two or three cycles of IVF. And if they're not pregnant after the first, they get a second, they're not pregnant after the second, they get a third. So the third package of IVF is essentially free if the patient hasn't had success on the first two.") (quoting ARC representative Dr. David Adamson) (emphasis added).
152. Wilcox, supra note 40, at 116.
153. AFC, IVF 100% Money Back Guarantee, http://www.advancedfertilitycare.com/financial-plans/ivf-guarantee.html (last visited Aug. 6, 2009) [hereinafter AFC 100% Money Back Guarantee].
154. AFC, IVF Flat Fee Pricing, http://www.advancedfertilitycare.com/financial-plans/ivf-flat-fee.html (last visited Oct. 4, 2009) [hereinafter AFC Flat Fee]
155. Mann, supra note 55.
156. IntegraMed 2008 10-K, supra note 42, at 24.
157. Mann, supra note 55 (quoting a Shady Grove representative) (internal quotations omitted).
158. In 2006, around 25% of the IVF cycles for all women under 35 years old were frozen cycles and around 23% of the IVF cycles for all women between 35 and 37 years old were frozen. SART, Clinic Summary Report, https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0 (last visited Nov. 2, 2009) [hereinafter SART Clinic Summary Report] (reporting 37,178 fresh IVF cycles and 9114 frozen IVF cycles for women under 35, and 21,339 fresh IVF cycles and 4814 frozen IVF cycles for all women between 35 and 37).
159. AFC Flat Fee, supra note 141.
160. These figures do not include the cost of pharmaceuticals because they are not covered by any refund program. Id. The price of these pharmaceuticals remains the same regardless of which option the patient chooses.
161. AFC 100% Money Back Guarantee, supra note 140.
162. AFC Flat Fee, supra note 141.
163. Carl E. Schneider &Mark A. Hall, The Patient Life: Can Consumers Direct Health Care?, 35 AM. J.L. & MED. 7, 37 (2009).
164. Susan Block-Lieb & Edward J. Janger, The Myth of the Rational Borrower: Rationality, Behavioralism, and the Misguided "Reform" of Bankruptcy Law, 84 TEX. L. REV. 1481, 1538 (2006) ("When thousands of adults from across the country were given tests of basic math and basic literacy, a significant portion of the population was unable to make the comparisons necessary to assess the cost of credit card debt.").
165. See Schneider & Hall, supra note 152, at 37 (discussing a study in which "people were asked to: (1) guess how often a flipped coin would come up heads in 1,000 tries, (2) asked to calculate 1% of 1,000, and (3) turn a proportion (1 in 1000) into a percentage" and reporting that "[t]hirty percent of respondents had 0 correct answers, 28% had 1 correct answer, 26% had 2 correct answers, and 16% had 3 correct answers") (internal quotations omitted).
166. See Schneider & Hall, supra note 152, at 37 (discussing a study in which "people were asked to: (1) guess how often a flipped coin would come up heads in 1,000 tries, (2) asked to calculate 1% of 1,000, and (3) turn a proportion (1 in 1000) into a percentage" and reporting that "[t]hirty percent of respondents had 0 correct answers, 28% had 1 correct answer, 26% had 2 correct answers, and 16% had 3 correct answers") (internal quotations omitted).
167. E.g., Block-Lieb & Janger, supra note 151, at 1533.
168. E.g., Block-Lieb & Janger, supra note 151, at 1533.
169. For an explication of the anchoring effect in another consumer credit transaction, see Jim Hawkins, Renting the Good Life, 49 WM. & MARY L. REV. 2041, 2096-98 (2008).
170. Patricia A. McCoy, A Behavioral Analysis of Predatory Lending, 38 AKRON L. REV. 725, 737 (2005)
171. See supra notes 154-57, infra notes 159-63 and accompanying text.
172. See Wilcox, supra note 40, at 118.
173. See Wilcox, supra note 40, at 118.
174. Letitia Stein, Couples Share Difficult Experience of Infertility, ST. PETERSBURG TIMES (Tampa Bay, Fla.), Apr. 26, 2009, at 1B.
175. Wilcox, supra note 40, at 119 ("Expensive medications account for about one-fourth of the cost of IVF.").
176. See, e.g., Advanced Fertility Center of Chicago, Cost of IVF at Advanced Fertility Center of Chicago, Illinois, http://www.advancedfertility.com/ivfprice.htm (last visited Sept. 28, 2009) [hereinafter Chicago Cost of IVF] (reporting the price of $1200 for ICSI); Washington Fertility Center, Our Fees, http://www.washingtonfertility.com/pages/fees.html (last visited Sept. 28, 2009) (reporting the price of $1290 for assisted hatching).
177. E.g., Chicago Cost of IVF, supra note 163.
178. Marie McCullough, Money-Back In Vitro Programs Expand as Success Rate Grows, PHILA. INQUIRER, Aug. 17, 2003, at A1 ("While refund packages may not reduce patients' costs, the deals provide something rare in infertility treatment: less stress. The price tag, however staggering, is defined.").
179. Wilcox, supra note 40, at 118 (internal quotations omitted). After the process is complete, a patient can of course see the extra costs associated with the program. As one patient posted on a fertility support website: I am currently in the final stage of my first IVF treatment. We just had retrieval on Thursday, and we're expecting a transfer this Tuesday or Wednesday. I have the Capital One loan, and I have been very disapointed [sic] to find that the amount that we were financed was also part of a package with ARC (Assisted Reproductive Care). They told me they have a set discout [sic] package price with my RE, this was $8,800, plus ICSI $1700, plus their pharm plan (which was good, they sent all meds to me ups next day) $3,000 plus my husband's extraction with Urologist $1,000. I figured that would be enough right? There have been so many additional ridiculous fees. Like it only covers 6 E/2's, 5 U/ S for follicular development, and one pregnancy test. Additionally, on the package, it mentioned having anaesthesia [sic] covered, but my RE had to charge me for the meds. what's up with that? If you get a package, it should include everything, right??? Anyway, be aware that we have already spent $2,500 in extra fees with another $800 to go. Posting of hopefulmom2B to http://www.fertilethoughts.com/forums/financing-your-ivf/54203 9-capital-one-healthcare-finance.html (Nov. 4, 2007, 08:20 EST).
180. Mann, supra note 55.
181. Cf. Martin, supra note 126 ("After six years of struggling with infertility, Melissa Hoggatt, 32, and her husband, Bill, 35, were spent, emotionally and financially. The couple decided to have one last try at having a biological child. To raise $14,900 for the Sher Institute's outcome-based plan, they saved, borrowed on their credit cards, and even took out a second mortgage on their home in Slidell, La."); Yee & Marcotty, supra note 122 ("This summer, [the Foxes] came to Woodbury and paid $25,000 for three tries at in-vitro fertilization, commonly called IVF. The clinic offered a 100 percent money-back guarantee if they don't end up with a baby. To pay, they took out a medical loan for $20,000 and cleaned out the $5,000 in Greg's flexible spending account at work.").
182. Gordon, supra note 120 (internal quotations omitted).
183. Advanced Fertility Center of Chicago, IVF Cost Option That Refunds All Money If It Doesn't Work 100% Refund If No Baby, http://www.advancedfertility.com/ivfpr100.htm (last visited Oct. 25, 2009) ("We offer a pricing option with a 100% refund of the fee for the IVF cycle (medications not included) if you do not deliver a baby.").
184. Washington Fertility Baby Guarantee, supra note 17 (emphasis added); see also Infertility and IVF Center of St. Louis, How to Qualify for Our Treatment Plan Options, http:// www.ivfctrstl.org/How%20to%20Qualify.html (last visited Oct. 23, 2009) ("The end result is containment of cost with all costs known before treatment begins.").
185. The Early Show, supra note 138.
186. The Early Show, supra note 138.
187. Fertility Centers of Illinois, Shared Risk IVF Refund Program, http://www.fcionline.com/Video_Shared_Risk_Program.htm (last visited Jan. 30, 2009) [hereinafter Illinois Shared Risk IVF Refund Program].
188. ASRM Ethics Committee Report, supra note 72, at S250.
189. See Colorado Center for Reproductive Medicine, Infertility Financing, http://www.colocrm.com/Financing.htm (last visited Oct. 25, 2009) [hereinafter Colorado Infertility Financing] ("In the Attain IVF Program, the financial risks associated with IVF treatment is [sic] distributed among all patients participating in the Program.").
190. See, e.g., ART Fertility Program of Alabama, Shared Risk Refund program, http://www.artprogramal.com/default.aspx?id=140 (last visited Oct. 16, 2009) ("In other words, we will share the risk with you and do everything we can for you to achieve a live birth."); Gerencher, supra note 12 ("If we're willing to sit down with you and tell you this great story about how good a chance of success you have, we're willing to share the risk that we're wrong.") (quoting Dr. Widra at Shady Grove) (internal quotations omitted); Infertility and IVF Center of St. Louis, supra note 171 ("In the Joint Venture Plan, both the couple and the Center are sharing the risk.").
191. Gary Wisby, Fertility Clinic's Cash on the Line: Women Who Don't Conceive Get Refund, CHI. SUN-TIMES, June 13, 1999, at 10 (quoting Dr. Norman Gleicher) (internal quotations omitted); see also Mann, supra note 55 ("The program, [Dr. Robert Stillman at Shady Grove Fertility] said, 'functions as a self-insurance trust. It's an option for those without insurance.'").
192. Atlanta Center for Reproductive Medicine, Patient Financial Services, http://www.atlantainfertility.com/financial-financial-services.html (last visited Jan. 27, 2009).
193. University Reproductive Associates, IVF Refund Program, http://www.uranj.com/index.php?option=com_content&task=view&id=8 9&Itemid=138 (last visited Feb. 13, 2009).
194. OREGON REPRODUCTIVE MEDICINE, OUR PROMISE: AN IVF REFUND PLAN AT OREGON REPRODUCTIVE MEDICINE 3 (2009), available at http://www.oregonreproductivemedicine.com/files/Our%20Promise%20_An%20IV F%20Refund%20Plan_1.pdf.
195. Infertility Solutions, P.C., IVF Refund and Shared Risk Program, http://www.infertility solutions.com/IVFrefund.html (last visited Oct. 25, 2009).
196. ASRM Ethics Committee Report, supra note 72, at S249.
197. Mann, supra note 55 ("The 28-year-old who pays $28,000 and gets pregnant in one try is subsidizing the 38-year-old who takes four times.") (internal quotations omitted); Yee & Marcotty, supra note 12 ("By paying up front for a package of three tries, patients who got pregnant on the first try subsidized those who got pregnant on a third.").
198. TEX. INS. CODE ANN. § 541.051(1)(C) (Vernon 2008).
199. TEX. INS. CODE ANN. § 541.057.
200. TEX. INS. CODE ANN. § 541.060(a)(2)(A).
201. TEX. INS. CODE ANN. at art. 1.02(b).
202. Allison Overbay & Mark Hall, Insurance Regulation of Providers that Bear Risk, 22 AM. J.L. & MED. 361, 366 (1996). For Texas's provision, for instance, see § 421.001.
203. John D. Blum, Safeguarding the Interests of People with AIDS in Managed Care Settings, 61 ALB. L. REV. 745-773 (1998).
204. John D. Blum, Safeguarding the Interests of People with AIDS in Managed Care Settings, 61 ALB. L. REV. 745-773 (1998).
205. See § 541.201(a) ("The attorney general may bring an action under this section if the attorney general has reason to believe that: (1) a person engaged in the business of insurance in this state is engaging in, has engaged in, or is about to engage in an act or practice defined as unlawful under: (A) this chapter or a rule adopted under this chapter; or (B) Section 17.46, Business & Commerce Code; and (2) the action is in the public interest.").
206. Contractually, IVF refund providers may be obligated to pay the refund, but having a contractual duty and having a statutory duty are very different. For instance, the state's attorney general can enforce a statutory duty but not a contractual duty.
207. See supra Part II.B.3.
208. IntegraMed Fertility Network, The Attain IVF Program, http://www.integramed fertility.com/inmdweb/content/cons/shared.jsp (last visited Oct. 16, 2009).
209. Oren Bar-Gill, Seduction by Plastic, 98 NW. U. L. REV. 1373, 1400 (2004).
210. Oren Bar-Gill, Seduction by Plastic, 98 NW. U. L. REV. 1373, 1400 (2004).
211. Oren Bar-Gill, Seduction by Plastic, 98 NW. U. L. REV. 1373, 1400 (2004).
212. Edward C. Chang et al., Cultural Variations in Optimistic and Pessimistic Bias: Do Easterners Really Expect the Worst and Westerners Really Expect the Best When Predicting Future Life Events?, 81 J. PERSONALITY & SOC. PSYCHOL. 476, 486 (2001).
213. Some commentary suggests patients are overly optimistic. See Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. REV. 1121, 1194-95 (2004) (Patients may also overestimate the odds of success in later individual cycles due to the gamblers fallacy. For example, patients may assume that, with a twenty percent per cycle success rate for IVF, the odds of success after four unsuccessful cycles would be much higher than twenty percent in their next IVF cycle. In fact, the chance of success may remain the same for each IVF cycle regardless of how many times the couple has tried IVF in the past.). Spar argues that women facing infertility tend to overestimate their chances of conception by an extremely wide margin. SPAR, supra note 4, at 53. Spar cites to two surveys to prove her claim, but both surveys include women who have never struggled with infertility. Id. at 53 n.55. Given the unique experiences of those who have failed to conceive naturally, the results of a general population survey cannot be equated with the results of a survey of infertile women.
214. See Cass R. Sunstein, Hazardous Heuristics, 70 U. CHI. L. REV. 751, 773 (2003) ("One survey finds general overestimates of personal risk levels for such hazards as breast cancer (where women rate their actual risk as 40 percent, with the actual risk being roughly 10 percent); prostate cancer (where men rank their actual risk as 40 percent, with the actual risk again being roughly 10 percent); lung cancer (estimated at 35 percent, compared to an actual risk of under 20 percent); and stroke (estimated at 45 percent, compared to an actual risk of roughly 20 percent).");
215. see also Michael A. McCann, Social Psychology, Calamities, and Sports Law, 42 WILLAMETTE L. REV. 585, 620 (2006) (suggesting professional athletes may suffer from "pessimism bias when considering that risk [of terrorism] in foreign playing op-portunities"). One commentator has argued that scholars applying behavioral law and econom-ics, like the author in this Article, exhibit a pessimism bias by discounting "research findings contrary to their view of legal decisionmakers as afflicted by numerous judgmental biases and decision-making errors, while simultaneously interpreting ambiguous research findings as sup-portive of their pessimistic view of human rationality."
216. Gregory Mitchell, Taking Behavioral-ism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law, 43 WM. & MARY L. REV. 1907, 1911 (2002).
217. Schmittlein & Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. SCI. 1618, 1618 (2003)., at 1618.
218. Schmittlein & Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. SCI. 1618, 1618 (2003)., at 1618.
219. Alice D. Domar et al., The Prevalence and Predictability of Depression in Infertile Women, 58 FERTILITY & STERILITY 1158, 1158, 1161-62 (1992)., at 1159.
220. For evidence that spending money on non-IVF fertility treatments causes patients to use IVF refund programs, see Barri Bronston, 21st Century Triplets, TIMES-PICAYUNE (New Orleans, La.), May 13, 2001, at E-1 ("Having already spent more than $30,000 in medical costs-the bulk of which had not been covered by medical insurance-the Manieris especially liked Sher's money-back guarantee. Patients who fail to get pregnant through Sher's clinic receive a full or partial refund, depending on their age.").
221. Schmittlein & Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. SCI. 1618, 1618 (2003), at 1617 ("Typically, such a couple has already attempted natural conception, the use of fertility-enhancing drugs, and intrauterine insemination without success.").
222. See supra Part II.C.
223. Alice D. Domar et al., The Prevalence and Predictability of Depression in Infertile Women, 58 FERTILITY & STERILITY 1158, 1158, 1161-62 (1992), at 1160 ("Women with a 2-to-3 year history of infertility had significantly higher BDI scores than women with durations of <1 year or >6 years.").
224. NBC Nightly News: Fertility Clinics with a Money-Back Guarantee (NBC television broadcast Aug. 1, 1998).
225. ASRM Ethics Committee Report, supra note 72, at S249 ("[P]atients who meet program qualifications for these plans should know that they are otherwise good candidates for successful IVF, and thus might not need to purchase this form of insurance.").
226. SART Clinic Summary Report, Bob Keefe, Prop. 8 Backlash Reaches Texas, AUSTIN AM.-STATESMAN, Nov. 25, 2008; William M. Welch, Prop. 8 Foes Turn to "Blacklist" Tactics, USA TODAY, Dec. 21, 2008.
227. Colorado Center for Reproductive Medicine, 2005 Infertility and IVF Statistics, http:// www.colocrm.com/rates2006.htm (last visited Oct. 25, 2009).
228. Colorado Infertility Financing, David Schultz, Disclosure is Not Enough: Empirical Lessons from State Experiences, 3 ELECTION L.J. 349, 350.
229. Laurie Smith Anderson, Center Offers Shared Risk Program for Infertility Treatment, THE ADVOC. (Baton Rouge, La.), Jan. 26, 2005 (quoting one doctor lamenting that "I've had patients who got a second mortgage on their homes to pay for in vitro, and if it doesn't work, they don't have anything left to pursue adoption," but concluding that a refund program "would give them that option") (internal quotations omitted); Wisby, supra note 178 (highlighting Dr. Norbert Gleicher's concern that patients "spend to their last dime, and if they don't get pregnant, they don't have anything left for adoption, which isn't cheap, either") (internal quotations omitted); Chicago IVF Cost Plan with Risk Sharing, supra note 38 ("It might be considered an ideal payment option for those couples who are considering in vitro fertilization but are concerned that if they are not successful, they will not be financially able to pursue adoption."); Washing-ton Fertility Baby Guarantee, supra note 17 ("If you succeed, we will have earned our fee. If you do not bring home a baby, you owe nothing and receive 100% of your money back. You will then still have the financial resources to pursue other options of starting a family, such as adoption.").
230. The Early Show, Dr. David Adamson of Advanced Reproductive Services and Parise and Jon Pak, Dr. Adamson's Patients, Discuss the Fertility Treatment Services Offered at Advanced Reproductive Services (CBS News television broadcast Sept. 27, 2000) [hereinafter The Early Show] ("We've put the packages of services together. And that's a three-cycle IVF option. So a patient can get one, two or three cycles of IVF. And if they're not pregnant after the first, they get a second, they're not pregnant after the second, they get a third. So the third package of IVF is essentially free if the patient hasn't had success on the first two.") (quoting ARC representative Dr. David Adamson) (emphasis added).
231. Michael Feinman, Economics Versus Ethics in Reproductive Medicine, 21 WHITTIER L. REV. 409, 411-12 (1999).
232. The Fertility Website Study did not code websites for references to adoption, but the study protocol required researchers to list the advantages each website provided for the refund program. Without specifically looking for websites mentioning adoption, the study found twenty-six that do.
233. Dennis Douda, Fertility Clinic Offers Money-Back Guarantee, WCCO-TV, Nov. 29, 2006, http://wcco.com/local/Fertility.clinic.money.2.363242.html ("'We may entertain the idea of adoption,' Stacy said. 'Without having the money-back guarantee, we would be out that money and it would be very difficult to come up with another amount of money to pursue adoption.'").
234. Even after three attempts under the IVF refund program fail, patients are more likely to continue with IVF attempts using the refund money provided by the refund program because of the "house money" effect. Decision-process literature predicts people have a heightened tendency to use "found money" to engage in risky transactions (such as a fourth or fifth IVF attempt), further encouraging repeated IVF attempts and preventing patients from stopping IVF treatments when medically indicated. Schmittlein & Morrison, supra note 135, at 1629. One clinic encourages patients to use the IVF refund program to pursue more treatments: "This program enables us to share our success with our patients and by reimbursing IVF fees permitting them to continue and pursue further treatment." Midwest Fertility Center, When You're Ready but Nature's Not, http://ivf.us/index.cfm/PageID/6655 (last visited Oct. 4, 2009).
235. See generally Marie McCullough, Clinics Promise Fertilization or Refund; No Guarantees When It Comes to Pregnancy? Think Again, PHILA. INQUIRER, Aug. 17, 2003, at A1.
236. See generally Marie McCullough, Clinics Promise Fertilization or Refund; No Guarantees When It Comes to Pregnancy? Think Again, PHILA. INQUIRER, Aug. 17, 2003, at A1.
237. ASRM Ethics Committee Report, supra note 72, at S250.
238. IntegraMed Fertility Network, Infertility and IVF Financing-Apply For a Loan, http://www.integramed.com/inmdweb/content/cons/financing.jsp (last visited Oct. 4, 2009).
239. Marilynn Marchione, Infertility Expert's Offer: No Pregnancy, No Bill, MILWAUKEE J. SENTINEL, Aug. 22, 1999, at 1A (reporting the opinion of Dr. K. Paul Katayama).
240. Laura Lewis Brown, Financing Your Way Through Fertility Treatment, REVOLUTION HEALTH, Jan. 19, 2007, http://www.revolutionhealth.com/conditions/reproductive-health/infer tility/decision/financing (internal quotations omitted).
241. Marilynn Marchione, Infertility Expert's Offer: No Pregnancy, No Bill, MILWAUKEE J. SENTINEL, Aug. 22, 1999.
242. See Gerencher, supra note 12 (noting that Dr. Widra of Shady Grove said that "patients who fit the profile of being under 38 and having normal ovarian function feel reassured" by the IVF refund program).
243. Sher Institutes for Reproductive Medicine, Accessibility, http://www.haveababy.com/SIRM/aboutSIRM/centers/nycaccess.html (last visited Feb. 12, 2008).
244. Atlanta Center for Reproductive Medicine, The Attain IVF Program, http://www.atlantainfertility.com/financial-shared-risk.html (last visited Oct. 31, 2009).
245. Illinois Shared Risk IVF Refund Program, supra note 174.
246. ATTAIN IVF, PAYING FOR IVF (IntegraMed 2009), available at http://www.integramed fertility.com/inmdweb/content/cons/paying-for-ivf.jsp.
247. In a related argument, some contend that clinics have an obligation to inform patients of the general risks of IVF in addition to the odds of IVF succeeding because clinics have superior knowledge. See Suzanne Leigh, Fertility Patients Deserve to Know the Odds-and Risks USA TODAY, July 7, 2004, at 11A ("The slick sales pitches used by some of the nation's 400 or so fertility clinics are hard to miss. 'With our (in-vitro fertilization) 100% money-back-guarantee program, you'll have no risk,' reads one clinic's Web site. 'Take home a baby or we will refund 70% of your money,' reads a second, which also offers 'a raffle entry for a chance to win a free IVF cycle.' Baby? No risk? Make that possible babies and possible risks. In 2001, 46% of infants conceived as a result of in-vitro fertilization and related procedures were twins; 8% were triplets or more. Clinics' marketing materials doesn't mention, of course, the brain damage, blindness, cerebral palsy and mental retardation that accompany many multiple births because of their prematurity.").
248. See, e.g., 'No Baby, No Fee', ABERDEEN PRESS & J. (Scot.), Aug. 26, 2006, at 6 (discussing the Infertility Network Scotland, "a charity providing support and information to those suffering the effects of infertility").
249. Martin, supra note 126.
250. See id. ("Sher has also sunk $1 million into a proprietary electronic record-keeping program called ReproLink. It makes it possible to crunch a huge number of variables and figure out the most promising protocol for a woman. Say there's a patient with the following profile: 39 years old, a history of miscarriages, and a blood-clotting disorder. ReproLink lets doctors locate the records of former Sher Institute patients with similar profiles to puzzle out the course of treatment that has proved most effective. The program has been invaluable in bolstering the Sher Institute's success rates, which in turn makes the clinics more profitable on the outcome-based plan.").
251. Borzo, supra note 50.
252. Borzo, supra note 50.
253. IntegraMed 2008 10-K, supra note 42, at 5 ("ARTworks Clinical Information System -a proprietary electronic medical record (EMR) system focused exclusively on the unique re-quirements of providing clinical care to patients seeking fertility treatment. We maintain this application at our data center in New York, with contracted fertility centers gaining access via a dedicated communications link. This structure allows our customers to minimize their invest-ment in information systems and relieves them of software maintenance obligations. The appli-cation is also interfaced with commonly used laboratory equipment and our practice management information systems.").
254. Id. at 6.
255. Schmittlein & Morrison, supra note 135, at 1624 (explaining how clinics learn valuable information through a single IVF cycle and how clinics can use that information to push patients with remote prospects of success to other treatments).
256. JEROME GROOPMAN, HOW DOCTORS THINK 149 (2007).
257. Id. at 151 (internal quotations omitted).
258. Schmittlein & Morrison, supra note 135, at 1617 (concluding that "the marketing of money-back guarantees is inducing couples who would previously used-successfully-other less invasive" methods.). The conclusion is understated because the model assumes that clinics must keep patients who do not succeed after one attempt in the IVF refund program. See id. at 1624 (only accounting for some learning that clinics acquire through multiple cycles but neglecting to account for learning "that the prospects for IVF success are remote" because it does not "actually benefit a clinic offering a money-back guarantee."). In reality, clinics can often terminate their agreements with patients that only have a remote prospect for success. Thus, the model underestimates the learning effect.
259. Compare id. at 1620 (assuming 22% of IVF transfers resulted in a live birth), with Society of Assisted Reproductive Technology, Clinic Summary Report, https://www.sartcors online.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0 (last visited Nov. 3, 2009) (reporting that over 43% of IVF transfers in 2007 resulted in a live birth).
260. Flisser et al., supra note 82, at 547.
261. E.g., Dennis Douda, Fertility Clinic Offers Money-Back Guarantee, WCCO-TV, Nov. 29, 2006, ("RMIA's") [Reproductive Medicine & Infertility Associates in Woodbury, Minn.] 100 percent money-back plan is limited to women under age 35, boosting the odds of success.").
262. Wilcox, supra note 40, at 118.
263. Anderson, supra note 137.
264. Anderson, supra note 137.
265. Lisa Barrett Mann, A Baby, or Cash Back; Some IVF Centers Offer Risk-Sharing Deals, WASH. POST, May 18, 2004, at F1.
266. Marie McCullough, Clinics Promise Fertilization or Refund; No Guarantees When It Comes to Pregnancy? Think Again, PHILA. INQUIRER, Aug. 17, 2003, at A1. (reporting that seventy percent of IntegraMed's patients meet the IVF refund requirements).
267. Id. (quoting IntegraMed's Schumann).
268. Gina Kolata, Fertility Inc.: Clinics Race to Lure Clients, N.Y. TIMES, Jan. 1, 2002 at F1 ("Most patients, in a sort of bait-and-switch scheme, are told when they show up that they are not eligible for the guarantee ....").
269. Robertson and Schneyer make this very suggestion: "[T]he danger [of IVF refund programs being used in a bait-and-switch advertising scheme] is easily countered by insisting that each clinic's promotional materials identify its eligibility criteria." Robertson & Schneyer, supra note 65, at 287.
270. See Ikemoto, supra note 67, at 1030 (noting that the high cost of fertility treatments screens out poor populations and arguing that the majority of couples using IVF are white and that "[p]rocreative technology use has become a racially-specific, class-based method of fam-ily formation").
271. Compare Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GEN. L. & JUST. 18, 37 (2008) (suggesting states should mandate that insurance cover fertility treatments), with Hawkins, supra note 96 (arguing that increased access to credit could expand access to fertility treatments).
272. DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 30 (2006), at 30.
273. Monahan, David Schmittlein & Donald Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. SCI. 1618, 1618 (2003)., at 182-83 ("[S]hared-risk plans are of limited value in truly expanding access, as they require a couple to pay more than the cost of a single cycle of IVF. The monetary threshold to participate is therefore likely to be prohibitively high for many patients.").
274. Yee & Marcotty, Kristen Gerencher, The Promise of a Child, MARKETWATCH, July 19, 2000 ("For them, it was the guarantee that did it. 'If not, then it would be a lot of money,' Greg Fox said.").
275. Tracy Boyd, Health News, DETROIT NEWS, Nov. 21, 2000, at 3F ("[ARC] will help build families for people who could not otherwise absorb the financial risk associated with fertility treatments.").
276. The Early Show, Dr. David Adamson of Advanced Reproductive Services and Parise and Jon Pak, Dr. Adamson's Patients, Discuss the Fertility Treatment Services Offered at Advanced Reproductive Services (CBS News television broadcast Sept. 27, 2000) [hereinafter The Early Show] ("We've put the packages of services together. And that's a three-cycle IVF option. So a patient can get one, two or three cycles of IVF. And if they're not pregnant after the first, they get a second, they're not pregnant after the second, they get a third. So the third package of IVF is essentially free if the patient hasn't had success on the first two.") (quoting ARC representative Dr. David Adamson) (emphasis added).
277. Anna Mulrine, Making Babies, U.S. NEWS & WORLD REP., Sept. 27, 2004, at 60 ("Spending on IVF alone is up 50 percent in the past five years, to over $1 billion last year.").
278. Barbara Fitzsimmons, Fertile Business, SAN DIEGO UNION-TRIB., Sept. 13, 1996, at E-1.
279. The fact that IVF refund programs encourage patients to undergo additional cycles is not likely a matter of dispute-the reason people agree to pay a set fee upfront is to allow them to have additional cycles if the first are unsuccessful. Anecdotal evidence illustrates how this works: All told, the Lohs paid $40,000, which included three rounds of IVF, drugs and a refund guarantee of about $19,000. "One thing that helped me get through was knowing that the treatments were already paid for," says Nancy. Discouraged at the end of round two, she says, "I might not have done the third cycle if not for the packaged plan. It helped us hang in there." Melynda Dovel Wilcox, Having an In Vitro Baby Can Be Easier Than Figuring Out How to Pay the Bill, KIPLINGER'S PERS. FIN., Sept. 2002, available at http://www.nobabyonboard.com/miracle.html.
280. Dennis Douda, Fertility Clinic Offers Money-Back Guarantee, WCCO-TV, Nov. 29, 2006, http://wcco.com/local/Fertility.clinic.money.2.363242.html ("Stassart said without a warranty program, [or] some kind of money-back guarantee, only about half of the couples who don't conceive on the first cycle will try again and virtually none can afford to risk a third try.").
281. Ian Murray, IVF Clinic Offers 'No Baby, No Fee' Treatment Deal, TIMES (London), Sept. 10, 1998, at 2. ("Jonathon West, the consultant in charge of the clinic, said that the new formula should encourage couples not to give up trying to have the baby they want because of the cost.").
282. See Susan Golombok, Psychological Functio ning in Infertility Patients, 7 HUM. REPROD. 208, 210 (1992).
283. Judith VandeWater, Fertility Doctors Use Advertising and Refund Offers to Woo Couples; Pricing Packages, Money-Back Guarantees and Unconventional Methods Have Caused Some Physicians to Become Concerned for Patients' Health When the Emotional and Financial Stakes Are High, ST. LOUIS POST-DISPATCH, Feb. 5, 2001 ("Dr. Ronald B. Wilbois, medical director of the Infertility and IVF Center in Town & Country, said he stopped offering a three-cycle package because he found that women who prepaid felt pressure to go through all three cycles to get their money's worth, even when they didn't respond well to their first treatment. Wilbois said his patients now pay per cycle, but those who fail to conceive after the third cycle are refunded the money for that procedure.").
284. Tarun Jain & Mark D. Hornstein, To Pay or Not to Pay, 80 FERTILITY & STERILITY 27, 27 (2003).
285. See generally E.R. Myers et al., The Personal Economics of IVF: Impact of Time Horizon, Number of Embryos Transferred, Quality of Life, and Choice of Outcome on Cost-Effec-tiveness from the Couple's Perspective, 88 FERTILITY & STERILITY S135 (2007).
286. Marie McCullough, Infertile Couples Get New Ammo, CHARLESTON GAZETTE, July 9, 2000, at 5B.
287. Pratt, Cass R. Sunstein, Hazardous Heuristics, 70 U. CHI. L. REV. 751, 773 (2003), at 1197-98 (arguing that subsidizing IVF through a tax deduction will decrease the instances of multi-fetal pregnancies).
288. Jim Hawkins, Doctors as Bankers: Evidence from Fertility Markets, 84 TUL. L. REV. (forthcoming 2010) (manuscript at 40-44), available at http://ssrn.com/abstract=1435610, at 26 (arguing that expanding access to credit will decrease the multi-fetal pregnancies).
289. See John A. Robertson & Theodore J. Schneyer, Professional Self-Regulation and Shared-Risk Programs for In Vitro Fertilization, 25 J.L. MED. & ETHICS 283, 288-89 (1997), at 288.
290. ASRM Ethics Committee Report, supra note 72, at S249-50.
291. SART Clinic Summary Report, supra note 145.
292. See supra Part II.C.3.
293. ASRM Ethics Committee Report, supra note 72, at S249.
294. See supra notes 150-52 and accompanying text.
295. See generally William M. Sage, Regulating Through Information: Disclosure Laws and American Healthcare, 99 COLUM. L. REV. 1701, 1715-16 (1999) ("Certainly, theoretical support exists for enhancing competition through information disclosure.... If information is asymmetric, with the asymmetry favoring sellers over buyers, disclosure laws can restore the balance of knowledge and allow consumers to make efficient choices among market offerings. Indeed, imbalances of information and the authority it confers have long been identified as the principal reason health care markets might fail.").
296. Schumann Interview, Pamela T. Schumann, President, Consumer Service Division, IntegraMed America, Inc. (Feb. 12, 2009) [hereinafter Schumann Interview].; E-mail from Adamson,
297. E-mail from David Adamson, Chief Executive Officer, Advanced Reproductive Care, Inc., to author (Mar. 1, 2009, 14:34 CST) [hereinafter E-mail from Adamson] (on file with author).
298. See, e.g., Hyman & Silver, See Abusief et al., supra note 13 (using this definition of IVF refund programs). When patients do not use an IVF refund program, they pay fees for each cycle of IVF individually. These arrangements are called fee-for-service arrangements. See David Hyman & Charles Silver, You Get What You Pay For: Result-Based Compensation for Health Care, 58 WASH. & LEE L. REV. 1427, 1441-42 (2001), at 1461 ("A disclosure requirement would suffice and would have the added advantage of ensuring that patients receive better information about treatment risks. Providers are already expected to tell patients about these risks when obtaining consent for medical procedures. Mandated disclosure of the variability of out-comes associated with procedures paid for by [results-based compensation agreements] would fit comfortably within this model. In fact, lawyers who enter into contingent fee arrangements routinely disclose in their engagement letters that success is not and cannot be guaranteed. It is difficult to see how patients can have 'unrealistic expectations' when disclosure statements tell them that medical procedures are risky.").
299. See Oren Bar-Gill, Seduction by Plastic, 98 NW. U. L. REV. 1373, 1400 (2004)., at 1378 (noting that disclosures are "the least controversial mode of legal intervention").
300. Colin Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism," 151 U. PA. L. REV. 1211, 1219 (2003) ("[A] policy is asymmetrically paternalistic if it creates large benefits for those people who are boundedly rational... while imposing little or no harm on those who are fully rational ...."); id. at
301. SART, SART National Summary, http://www.sart.org/find_frm.html (last visited Sept. 30, 2009).
302. This technique mirrors those in other studies of fertility websites, though we captured more websites by calling clinics when we could not locate websites through SART or search engines. See, e.g., Abusief et al., supra note 13 (explaining the authors only used SART's data and Internet search engines to generate their list of websites); Jack Y.J. Huang et al., Quality of Fertility Clinics Websites, 83 FERTILITY & STERILITY 538, 539, 543 (2005) (reporting the authors did not actually contact fertility clinics to determine if they had websites).
303. This number is significantly higher than the number of websites clinics had in 2005, as reported by Abusief et al. See Mary E. Abusief et al., Assessment of United States Fertility Clinic Websites According to the American Society for Reproductive Medicine (ASRM)/Society for Assisted Reproductive Technology (SART) Guidelines, 87 FERTILITY & STERILITY 88, 88-89 (2007)., at 89 (reporting that 75.3% of clinics (n=289) had functional websites).
304. Jack Y.J. Huang et al., Quality of Fertility Clinics Websites, 83 FERTILITY & STERILITY 538, 539, 543 (2005), at 543.
305. See Ronald J. Mann & Jim Hawkins, Just Until Payday, 54 UCLA L. REV. 855, 904 (2007) (arguing that presenting disclosures to debtors at the time of the transaction is too late because the customer cannot easily comparison shop at that point);
306. Lauren E. Willis, Decisionmaking and the Limits of Disclosure: The Problem of Predatory Lending: Price, 65 MD. L. REV. 707, 749 (2006) ("The law recognizes that consumers need written price disclosures to make a decision, yet it fails to give them the disclosures until a point in time when, as a practical matter, many consumers will not be able to price shop.").
307. For a discussion of how a consumer often anchors her perception of the costs of a transaction to a convenient number presented early in a transaction, see supra notes 154-156 and accompanying text.
308. For instance, in Texas, insurance websites must contain all of the disclosures that are usually presented in the transaction contract if the website "(1) describes specific policies or coverage available in this state; or (2) includes an opportunity for an individual to apply for coverage or obtain a quote from an insurer for an insurance policy or certificate or an evidence of coverage." TEX. INS. CODE ANN. § 541.082(b) (Vernon 2008). Even websites that do not contain specific policy information must conform to advertising guidelines. Id. § 541.082(d) ("Web pages of an Internet website that do not refer to a specific insurance policy, certificate of coverage, or evidence of coverage or that do not provide an opportunity for an individual to apply for coverage or request a quote from an insurer are considered to be institutional adver-tisements subject to rules adopted by the commissioner relating to advertising.").
309. E.g., Lee Ann Kahlor & Michael Mackert, Perception of Infertility Information and Support Sources Among Female Patients Who Access the Internet, 91 FERTILITY & STERILITY 83, 83 (2009) (reporting that eighty percent of Americans have searched the Internet for health information and that it is believed that at least forty percent of fertility patients search for fertility information on the Internet).