Putting too many (Fertilized) eggs in one basket: Methods of reducing multifetal pregnancies in the United States

Texas Law Review

Volumn 88, Issue 4, 2010, Pages 897-916

  Sivinski, Stephanie N ^a  

^a NONE

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EID: 78649288132     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (192)

1. Randal C. Archibold, Octuplets, 6 Siblings, and Many More Questions, N.Y. TIMES, Feb. 4, 2009, at A14.
2. See, e.g., Ellen Goodman, Op-Ed., The Ethical Failures of Fertility Treatment, BOSTON GLOBE, Feb. 6, 2009, at A15 (criticizing the policies that permitted an unemployed, single mother of six to conceive eight more babies through IVF).
3. Stephanie Saul, Birth of Octuplets Puts Focus on Fertility Clinics, N.Y. TIMES, Feb. 12, 2009, at A1.
4. Kamrava has since been expelled from the American Society of Reproductive Medicine but will still be permitted to practice. Doctor in Octuplets Case Expelled from Group, BOSTON GLOBE, Oct. 20, 2009, at A2.
5. Saul, supra note 3. Monozygotic twins develop when a single fertilized egg splits after conception, developing into two fetuses. ALESSANDRA PIONTELLI, TWINS: FROM FETUS TO CHILD 5 (2002).
6. Practice Comm., Soc'y for Assisted Reprod. Tech. & Practice Comm., Am. Soc'y for Reprod. Med., Guidelines on Number of Embryos Transferred, 90 FERTILITY & STERILITY (Supp. 3) S163, S163 (2008).
7. Id.
8. Practice Comm'n, Soc'y for Assisted Reprod. Tech. & Practice Comm'n, Am. Soc'y for Reprod. Med., Guidelines on Number of Embryos Transferred, 92 FERTILITY & STERILITY (Supp. 5) 1518, 1518 (2009), available at http://www.asrm.org/Media/Practice/Guidelines-on-number-of-embryos.pdf [hereinafter Guidelines on Embryos Transferred].
9. Id.
10. Id.
11. Id.
12. Id.
13. Id. Some evidence suggests that the transfer of five-day-old blastocysts is associated with a higher implantation rate than the transfer of three-day-old embryos, perhaps because the additional two days of culture allows clinicians to better screen against embryos that are not developmentally viable.
14. Alan Trounson, Embryo Stage and Transfer Number, in ASSISTED REPRODUCTIVE TECHNOLOGY: ACCOMPLISHMENTS AND NEW HORIZONS 311, 315-16 (Christopher J. De Jonge & Christopher L.R. Barratt eds., 2002). Therefore, use of blastocysts in IVF "reduces the risk of multiple pregnancy without compromising the success of IVF procedures."
15. Id. at 316.
16. Guidelines on Embryos Transferred, supra note 7, at 1518.
17. The 2009 guidelines clarify that "extraordinary circumstances" means that one additional embryo may be transferred for every two previous failed IVF attempts.
18. Id. at 1519. They also provided that the patient must be counseled about the risks of multifetal pregnancy.
19. Id.
20. A clinic may be subject to an audit if it reports a rate of multiple pregnancies exceeding the national average by two standard deviations for two consecutive years.
21. Id. at 1518. Additionally, a clinic that fails to comply with either the Society for Assisted Reproductive Technology's (SART's) or ASRM's advertising, practice, or ethical guidelines may have its membership revoked by these societies.
22. David Adamson, Regulation of Assisted Reproductive Technologies in the United States, in REPRODUCTIVE TECHNOLOGIES: A READER 1, 14 (Thomas A. Shannon ed., 2004). Over 95% of all fertility clinics in the U.S. are members of SART.
23. Id. at 15. Loss of membership is economically detrimental for two reasons. First, sophisticated IVF patients seek out clinics with SART membership by selecting from the list of clinics on the organization's public website.
24. Joe Leigh Simpson et al., Professional Self-Regulation for Preimplantation Genetic Diagnosis: Experience of the American Society for Reproductive Medicine and Other Professional Societies, 85 FERTILITY & STERILITY 1653, 1656 (2006). Second, insurance coverage often only applies to procedures done by member clinics. Id.;
25. Second, insurance coverage often only applies to procedures done by member clinics. Id.
26. see, e.g., CONN. GEN. STAT. ANN. § 38a-536 (West 2007);
27. HAW. REV. STAT. § 431:10A-116.5 (2004) (both mandating insurance coverage only for IVF procedures performed at clinics in compliance with ASRM, or another industry group's, guidelines).
28. See, e.g., Urska Velikonja, The Costs of Multiple Gestation Pregnancies in Assisted Reproduction, 32 HARV. J.L. & GENDER 463, 504 (2009) (arguing that the United States should shift from a laissez-faire approach for decreasing multifetal pregnancies toward a more heavily regulated European approach); Note, Assessing the Viability of a Substantive Due Process Right to In Vitro Fertilization, 118 HARV. L. REV. 2792, 2808-13 (2005) (providing possible justifications for why regulation of IVF should survive constitutional scrutiny);
29. see also Stephanie Nano, Octuplet Mom's Fertility Doctor Doesn't Stand Alone, HOUS. CHRON., Feb. 21, 2009, at A8 (reporting that since "most programs are not adhering to the guidelines," some advocates are calling for public regulation).
30. See infra Part III.
31. Note that any Assisted Reproductive Technology (ART) procedure that uses ovarian stimulation, including intrauterine insemination and donor insemination, can result in multiple births. David H. Barlow, The Debate on Single Embryo Transfer in IVF: How Will Today's Arguments Be Viewed from the Perspective of 2020?, 20 HUM. REPROD. 1, 2 (2005). Altering the incentives discussed here will not affect these procedures because they do not involve the transfer of embryos. Instead, preventing these multiple pregnancies will come from minimizing the stimulation used in both male infertility cases and unexplained infertility cases.
32. Id.
33. See Melinda B. Henne & M. Kate Bundorf, Insurance Mandates and Trends in Infertility Treatments, 89 FERTILITY & STERILITY 66, 66 (2008) (reporting a 397% increase in the number of higher order multiples born between 1980 and 2002).
34. See Ginny L. Ryan et al., The Desire of Infertile Patients for Multiple Births, 81 FERTILITY & STERILITY 500, 501-02 (2004) (examining the prevalence of the desire for multiple births among patients). The study found that 20% of infertility patients questioned listed multiple births (twins, triplets, or quadruplets) as the most desirable outcome of their fertility treatments. Id.
35. Id. All of the patients questioned were more concerned about conceiving quickly than avoiding multiple births.
36. Id. at 502.
37. See Victoria Clay Wright et al., Assisted Reproductive Technology Surveillance - United States, 2005, 57 MORBIDITY & MORTALITY WKLY. REP. (Surveillance Summaries 5) 1, 23 tbl.10 (2008) (showing higher percentages of adverse outcomes among ART twins and higher order multiples).
38. Elaine B. St. John et al., Cost of Neonatal Care According to Gestational Age at Birth and Survival Status, 182 AM. J. OBSTETRICS & GYNECOLOGY 170, 172-73 (2000).
39. Laura A. Schieve et al., Live-Birth Rates and Multiple-Birth Risk Using In Vitro Fertilization, 282 JAMA 1832, 1832 (1999).
40. See Wright et al., supra note 21, at 23 tbl.10 (defining low birth weight as under 2, 500 grams, or 5.5 pounds).
41. See id. (defining preterm as less than thirty-seven weeks gestational age at birth).
42. Robert L. Goldenberg & Jennifer F. Culhane, Low Birth Weight in the United States, 85 AM. J. CLINICAL NUTRITION (Feb. Supp.) 584S, 585S (2007).
43. AM. SOC'Y FOR REPROD. MED., PATIENT FACT SHEET: COMPLICATIONS AND PROBLEMS ASSOCIATED WITH MULTIPLE BIRTHS 1 (2008), http://www.asrm.org/Patients/ FactSheets/complications-multiplebirths.pdf.
44. Wright et al., supra note 21, at 1.
45. See id. (noting that 52,041 infants were born using ART in 2005).
46. Id.
47. Soc'y for Assisted Reprod. Tech., Clinic Summary Report, https://www.sartcorsonline.com/rptCSR-PublicMultYear.aspx?ClinicPKID=0.
48. See id. (noting that in 2005, only 1.8% of live births by women under thirty-five who had undergone IVF using nondonor oocytes resulted in triplets or higher order multiples).
49. See Wright et al., supra note 21, at 8 (reporting that, in 2005, 44% of ART babies were born as twins);
50. Soc'y for Assisted Reprod. Tech., supra note 31 (reporting that, in 2007, 32.9% of births by women under thirty-five who had undergone IVF using nondonor oocytes produced twins). Despite these numbers and the risks associated with multiple births, the ASRM and SART continue to defend self-regulation. See Simpson et al., supra note 15, at 1659 ("In 2004, The President's Council on Bioethics issued its report, 'Reproduction and Responsibility.' This report is in fundamental agreement with the policy of self-regulation pursued by ASRM/SART ⋯ and other professional organizations." (citation omitted)).
51. See Armin Gollogly, Octuplets Case Study: Should We Regulate Reproduction?, PENN. BIOETHICS J., Apr. 2009, at 4, 5 (arguing that the desire to have children must be weighed against the countervailing interest in avoiding the health complications possible in multiple births).
52. See John A. Robertson, Assisting Reproduction, Choosing Genes, and the Scope of Reproductive Freedom, 76 GEO. WASH. L. REV. 1490, 1501 (2008) ("Wise social policy and practice here would take steps to minimize the birth of twins, but doing so raises many issues about the meaning and limits of procreative autonomy, e.g., the right to have twins despite the costs that it imposes on others.").
53. See Trounson, supra note 12, at 311 (explaining that multiple embryos are implanted on the fifth or sixth day after external insemination).
54. Wright et al., supra note 21, at 17. Note that it is not possible from this data to determine how many of these transfers were based on the legitimate medical reasons for multiple transfers described in the ASRM guidelines and how many of these transfers were simply the result of a doctor ignoring the guidelines. One article has estimated that fewer than 20% of all American clinics follow the guidelines. Nano, supra note 16.
55. Wright et al., supra note 21, at 17.
56. Ctrs. for Disease Control & Prevention, Dep't of Health & Human Servs., Assisted Reproductive Technology (ART) Report: Fertility Clinic Reports, http://apps.nccd.cdc.gov/ART/FCT.aspx?SelectedYear=2007 (select the state of "California," select the clinic "West Coast IVF Clinic, Inc." then select the year "2007").
57. Id.
58. See supra note 11 and accompanying text.
59. Ctrs. for Disease Control & Prevention, supra note 39.
60. See supra notes 5-6 and accompanying text.
61. Wright et al., supra note 21, at 1.
62. Id. at 9.
63. RESOLVE: The Nat'l Infertility Ass'n, The Emotions of Infertility, http://www.resolve.org/site/PageServer?pagename=cop-mis-manem.
64. See Human Fertilisation and Embryology Act, 2008, c. 22, § 14(3) (U.K.) (requiring licensed clinics to provide their patients "a suitable opportunity to receive proper counseling").
65. AM. SOC'Y FOR REPROD. MED., ASSISTED REPRODUCTIVE TECHNOLOGIES: A GUIDE FOR PATIENTS 5-7 (2008), available at http://www.asrm.org/Patients/ patientbooklets/ART.pdf.
66. Am. Soc'y for Reprod. Med., Frequently Asked Questions About Infertility, http://www.asrm.org/Patients/faqs.html.
67. Henne & Bundorf, supra note 19, at 66.
68. According to one study, only 25% of employer health-insurance plans covered treatment for infertility, and among those only a few types of treatments were covered. Jessica L. Hawkins, Note, Separating Fact from Fiction: Mandated Insurance Coverage of Infertility Treatments, 23 WASH. U. J.L. & POL'Y 203, 204 (2007).
69. ARK. CODE ANN. §§ 23-85-137, 23-86-118 (2004);
70. CONN. GEN. STAT. ANN. § 38a-536 (West 2007);
71. HAW. REV. STAT. § 431:10A-116.5 (2004);
72. 215 ILL. COMP. STAT. 5/356m (2004);
73. MD. CODE ANN., INS. § 15-810 (LexisNexis 2006); N.J. STAT. ANN. § 17:48-6x (West 2008);
74. see MASS. GEN. LAWS ch. 175, § 47H (1998); R.I. GEN. LAWS § 27-18-30 (2002) (both providing for "medically necessary" infertility treatments if the coverage also includes pregnancy-related benefits);
75. see also Hawkins, supra note 51, at 214-18 (describing in detail each state's statute and the limitations that each places on coverage).
76. See CAL. INS. CODE § 10119.6 (West 2005) (requiring that insurance providers offer infertility coverage and communicate its availability to patients);
77. TEX. INS. CODE ANN. §§ 1366.003, .006 (Vernon 2009) (requiring that where coverage is provided, it only need apply to patients with a five-year continuous history of infertility).
78. See CONN. GEN. STAT. ANN. § 38a-536 (allowing insurance providers to limit coverage for IVF after the patient's fortieth birthday); N.J. STAT. ANN. § 17:48-6x (allowing insurance providers to limit coverage to patients forty-five years or younger); R.I. GEN. LAWS § 27-18-30 (requiring coverage for the treatment of infertility only in women between the ages of twenty-five and fortytwo).
79. See CONN. GEN. STAT. ANN. § 38a-536 (allowing insurance providers to limit coverage to two cycles of IVF);
80. HAW. REV. STAT. § 431:10A-116.5 (requiring coverage only for a single cycle of IVF);
81. MD. CODE ANN., INS. § 15-810 (limiting coverage to three IVF attempts per live birth);
82. N.J. STAT. ANN. § 17:48-6x (allowing insurance providers to limit coverage to four cycles of egg retrieval).
83. See 054-00-001 ARK. CODE R. § 5(b) (Weil 2009);
84. HAW. REV. STAT. § 431:10A-116.5;
85. MD. CODE ANN., INS. § 15-810 (all requiring coverage only when the patient's oocytes are fertilized with her husband's sperm);
86. see also R.I. GEN. LAWS § 27-18-30 (2002) (defining infertility as a condition occurring in a married individual).
87. See MD. CODE ANN., INS. § 15-810 (allowing insurance providers to limit IVF coverage to a lifetime benefit of $100,000).
88. Hawkins, supra note 51, at 219-20.
89. 524 U.S. 624 (1998).
90. Id. at 638.
91. See, e.g., Thomas D. Flanigan, Assisted Reproductive Technologies and Insurance Laws Under the Americans with Disabilities Act of 1990, 38 BRANDEIS L.J. 777, 804 (2000) (suggesting that a refusal to provide infertility treatment would render an employer liable for disability discrimination).
92. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12300 (2006).
93. Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 326-27 (S.D.N.Y. 2000), aff'd in part, remanded in part, 316 F.3d 337 (2d. Cir. 2003).
94. 42 U.S.C. § 2000e(k). The statute provides that employers cannot discriminate on the basis of "pregnancy, childbirth, or related medical conditions." Id.
95. The provision was interpreted to apply to health-insurance benefits in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983).
96. Compare Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1401-02 (N.D. Ill. 1994) (finding that the generous language used in the statute did include infertility treatments), with Saks v. Franklin Covey Co., 316 F.3d 337, 346 (2d. Cir. 2003) (holding that the PDA, which only applies to the medical needs of women, did not include infertility, which can afflict both men and women).
97. Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir. 1996).
98. Lower family income has been associated with a desire to conceive multiples. Ryan et al., supra note 20, at 502. One explanation for this association is that a couple with meager financial means may recognize a monetary limit on how many IVF cycles they can undergo and therefore want to "maximize their results in the fewest possible treatment cycles." Id. at 503.
99. Fertility Clinic Success Rate and Certification Act of 1992, 42 U.S.C. §§ 263a-1, 263a-5 (2006). The method of calculating success rates is determined by the Secretary of Health in collaboration with professional organizations such as SART and ASRM.
100. Id. § 263a-1. In determining an appropriate rate calculation, the Secretary is directed to consider the live-birth rate divided by either the number of stimulation procedures attempted or the number of egg-retrieval procedures attempted.
101. Id.
102. Soc'y for Assisted Reprod. Tech., supra note 31.
103. Wright et al., supra note 21, at 2.
104. Carson Strong, Too Many Twins, Triplets, Quadruplets, and So On: A Call for New Priorities, 31 J.L. MED. & ETHICS 272, 275 (2003).
105. AM. SOC'Y FOR REPROD. MED., supra note 27, at 1.
106. Id.
107. see also Strong, supra note 71, at 275 ("The main complication associated with multifetal reduction is loss of the entire pregnancy.").
108. But see AM. SOC'Y FOR REPROD. MED., supra note 27, at 1 (explaining that miscarriage is a risk factor associated with multiple gestation generally and implying that it is thus one factor that may encourage some mothers to undergo the multiple fetal reduction).
109. AM. SOC'Y FOR REPROD. MED., supra note 27, at 1.
110. See id. (asserting that because there are "too many babies in the womb," multiple gestation is associated with a risk of premature delivery - and the various physical problems of the babies associated therewith-but also clarifying that even after undergoing multifetal pregnancy reduction, there is still a risk of premature delivery).
111. See id. (acknowledging the difficulty of the decision and cautioning that both professional counseling and emotional support may be necessary before, during, and after the procedure);
112. see also Strong, supra note 71, at 275 ("[F]etal reduction is a highly stressful and emotionally painful experience for the women who undergo it.").
113. See Strong, supra note 71, at 275 ("[B]ased on patient surveys, approximately one-third of infertile couples would not choose fetal reduction, for religious and/or ethical reasons.").
114. Id. at 276.
115. Barlow, supra note 18, at 2. There are exceptions allowed for poor embryo quality.
116. Id. Double-embryo transfers are permitted for women over the age of thirty-nine and women who have undergone three or more failed cycles. Pia Saldeen & Per Sundström, Would Legislation Imposing Single Embryo Transfer Be a Feasible Way to Reduce the Rate of Multiple Pregnancies After IVF Treatment?, 20 HUM. REPROD. 4, 5 (2005).
117. Barlow, supra note 18, at 2.
118. Id.
119. Id.
120. In Sweden, the rate of single-embryo transfers has risen to over 70%, the overall birth rate has stayed the same, and the rate of twins has fallen. Barlow, supra note 18, at 2. Before the switch to single-embryo transfer, about 23% of viable pregnancies were multiples. Saldeen & Sundström, supra note 79, at 6. This figure dropped to about 6% after the transition to single-embryo transfer became mandatory for both publicly and privately funded IVF. Id. Preliminary reports indicate that Belgium's system has also been successful in reducing the multiple-pregnancy rate without lowering the overall pregnancy rate. Willem Ombelet et al., Multiple Gestation and Infertility Treatment: Registration, Reflection, and Reaction - The Belgian Project, 11 HUM. REPROD. UPDATE 3, 8 (2005).
121. See Strong, supra note 71, at 276 (relating that there has been strong opposition to governmental regulation among American fertility specialists).
122. Simpson et al., supra note 15, at 1653.
123. Pub. L. No. 102-493, 106 Stat. 3146 (codified at 42 U.S.C. §§ 263a-1 to -7 (2006)).
124. See Simpson et al., supra note 15, at 1653 (indicating that at the time of the statute's passage, "governmental agencies lacked the requisite organization to translate legislative goals into reality; thus, CDC contracted with ASRM and SART, and together, the groups devised the current system" of publication)
125. See Strong, supra note 71, at 276 ("The leading officers of the Society for Assisted Reproductive Technology (SART) stated, 'The worst thing that could occur would be for the federal government to step in and tell us how to practice our specialty.'"); 89).
126. cf. Simpson et al., supra note 15, at 1655 ("The ASRM can be considered prototypic for a professional organization espousing selfregulation in reproductive medicine.").
127. Simpson et al., supra note 15, at 1658. All of the European models discussed above have some form of state-funded IVF.
128. See, e.g., Mark Henderson, Infertile Couples to Be Priority for NHS, TIMES (London), Aug. 22, 2008, at 3 ("[L]imited NHS provision means that about 75 per cent of [IVF cycles] are conducted privately.");
129. Jordana Huber, Panel Pushes for Ontario Gov't to Fund In Vitro, EDMONTON J., Aug. 27, 2009, at A8 ("Belgium, Sweden, Denmark and Australia fund IVF treatments.").
130. See Simpson et al., supra note 15, at 1658-59 ("The paradoxical effect of rigid regulations will be that the U.S. public will be less well served because activities will transpire overseas without oversight of the type that U.S. citizens expect. Cutting-edge research and clinical application pursued outside the United States is already a familiar occurrence in reproductive medicine ⋯ .").
131. Suz Redfearn, Pursuing a Baby to the Ends of the Earth, WASH. POST, Jan. 14, 2007, at 16.
132. Guidelines on Embryos Transferred, supra note 7, at 1518.
133. Alicia Ouellette et al., Lessons from Across the Pond: Assisted Reproductive Technology in the United Kingdom and the United States, 31 AM. J.L. & MED. 419, 443-44 (2005).
134. Id.
135. Id. at 444.
136. See Saldeen & Sundström, supra note 79, at 5, 7 tbl.4 (noting that, due to the many exceptions in Sweden's single-embryo-transfer regime, 27% of Swedish patients received a doubleembryo transfer).
137. See, e.g., Robertson, supra note 35, at 1496 (warning that constitutional limits would apply to laws violating reproductive or other rights and that "[r]estrictions on testing and selecting embryos ⋯ might well violate liberty interests and rights in having children").
138. See John A. Robertson, The Virtues of Muddling Through, HASTINGS CENTER REP., July- Aug. 2007, at 26, 27 ("[T]here [will not] be unanimity that mandatory coverage of ARTs for infertile couples is a high priority, given their costs and competing health care concerns.").
139. The ASRM's guidelines seem to be having their desired effect. Robert W. Rebar & Alan H. DeCherney, Assisted Reproductive Technology in the United States, 350 NEW ENG. J. MED. 1603, 1604 (2004). Since 1997, the rate of higher order pregnancies has been decreasing. Id. The rate of twins born as a result of IVF is still high, and the ASRM anticipates that reducing the number of twins will be the next challenge it faces in self-regulating the industry.
140. Id.
141. See Ryan et al., supra note 20, at 502 (indicating that a majority of infertility patients are unaware of the increased risk in twins of cerebral palsy and infant mortality, though there is more awareness of these complications in triplets).
142. See A Thursday Redux - She Wanted to Know If It Was Legal?, The Fertility Advocate Blog, http://www.thefertilityadvocate.com/wpblog/?cat=297 (Mar. 31, 2009) (recounting one IVF patient's story). The content of the Fertility Advocate Blog is provided by Pamela Madsen, the Director of Public Education for East Coast Fertility and "one of the nation's most outspoken and recognized fertility educators and patient advocates." About Pamela Madsen, The Fertility Advocate Blog, http://www.thefertilityadvocate.com/wpblog/wp- content/about.html.
143. A Thursday Redux - She Wanted to Know If It Was Legal?, supra note 101.
144. Id.
145. Id.
146. Saldeen & Sundström, supra note 79, at 7.
147. Id.
148. See A.M. van Peperstraten, Why Don't We Perform Elective Single Embryo Transfer? A Qualitative Study Among IVF Patients and Professionals, 23 HUM. REPROD. 2036, 2040 (2008) ("Previous research demonstrated that, if patients understood the complications associated with twins, this might result in a change of attitude in favour of eSET [elective single-embryo transfer].").
149. But see M. Blennborn et al., The Couple's Decision-Making in IVF: One or Two Embryos at Transfer?, 20 HUM. REPROD. 1292, 1297 (2005) ("Perceived awareness of risks of multiple pregnancies was equal in patients who chose one or two embryos.").
150. See Denny Sakkas & David K. Gardner, Evaluation of Embryo Quality: Sequential Analysis of Embryo Development with the Aim of Single Embryo Transfer, in TEXTBOOK OF ASSISTED REPRODUCTIVE TECHNIQUES: LABORATORY AND CLINICAL PERSPECTIVES 235, 235 (David K. Gardner et al. eds., 2d ed. 2004) ("[T]he financial costs of supporting infants born from multiple pregnancies after IVF are in many cases higher than the cost of supporting IVF.").
151. See infra subpart V(C).
152. Henne & Bundorf, supra note 19, at 67. The study controlled for population differences among the states, including the number of women of reproductive age, the number of women in the work force, and the average salary of the states' citizens.
153. Id. at 70. The goal was to ensure that the results reflected only the effect of the insurance mandates and not other factors.
154. Id. at 66-67.
155. Id. at 71 fig.1.
156. See id. at 70 (concluding that births per cycle and multiples per ART birth were lower in states with comprehensive insurance mandates).
157. See Tarun Jain et al., Insurance Coverage and Outcomes of In Vitro Fertilization, 347 NEW ENG. J. MED. 661, 666 (2002) ("In conclusion, state-mandated health insurance coverage of [IVF] services is associated with greater utilization of such services but with reductions in the number of embryos transferred per cycle ⋯ ."); Meredith A. Reynolds et al., Does Insurance Coverage Decrease the Risk for Multiple Births Associated with Assisted Reproductive Technology, 80 FERTILITY & STERILITY 16, 22 (2003) ("Our results support the argument that mandated insurance coverage can affect practice patterns by resulting in the transfer of fewer embryos.").
158. Henne & Bundorf, supra note 19, at 66-67.
159. Id. at 66. The study also suggests, however, that the patient demographic may explain the lower multiple-birth rates in states with comprehensive coverage.
160. Id. at 69. For example, women that have extreme infertility conditions might be more willing to try IVF if the procedure is covered, even though the chances of getting pregnant remain low.
161. Id. at 71. If these women do not get pregnant, the number of multiple births per IVF cycle will still decrease.
162. Id.
163. see also, e.g., William D. Schlaff, Impact of Insurance Coverage on In Vitro Fertilization Practice Patterns: A Complex Relationship, 80 FERTILITY & STERILITY 30, 31 (2003) (opining that "the proportion of high-order transfers is at best only modestly affected by the insurance status of patients").
164. See Henne & Bundorf, supra note 19, at 73 (observing deficiencies in the current methodology).
165. See id. (noting the uncertainty of economic disparities among beneficiaries). receive treatment).
166. See supra note 107 and accompanying text.
167. See supra notes 13-15 and accompanying text.
168. HUM. FERTILISATION & EMBRYOLOGY AUTH., CODE OF PRACTICE §§ 7.2-7.3 (2009).
169. HUM. FERTILISATION & EMBRYOLOGY AUTH., A LONG TERM ANALYSIS OF THE HFEA REGISTER DATA 1991-2006, at 63, 64 fig.15b (2007).
170. See Kimberly D. Krawiec, Why We Should Ignore the "Octomom," 104 NW. U. L. REV. 120, 126 (2009) (acknowledging that increased insurance coverage decreases the economic incentive for multiple-embryo transfers).
171. See, e.g., Amy B. Monahan, Value-Based Mandated Health Benefits, 80 U. COLO. L. REV. 127, 128 (2009) ("Mandated benefit laws figure prominently in health reform debates because they present a fundamental tension in our health care system: the desire to keep costs low versus the desire to spread the risk of loss as widely as possible. Critics of these laws are concerned with both the premium cost increases that can result and the limits on choice they place on consumers in the health insurance marketplace.").
172. Hawkins, supra note 51, at 207.
173. David Frankfurter, To Insure or Not to Insure: That Is the Question, 80 FERTILITY & STERILITY 24, 24 (2003).
174. See Velikonja, supra note 16, at 479 ("Many infertility patients have health insurance, which covers most or all prenatal, delivery, and postnatal medical expenses.").
175. See Leslie J. Blackhall et al., Ethnicity and Attitudes About Patient Autonomy, in HEALTH CARE ETHICS AND HUMAN VALUES: AN INTRODUCTORY TEXT WITH READINGS AND CASE STUDIES 187, 187 (K.W.M. Fulford et al. eds., 2002) (recognizing that while the ideal of patient autonomy is "imperfectly realized in actual practice," "[f]or the past 25 years, legal and ethical analysis of medical decision making in the United States has revolved around the idea of patient autonomy," and giving examples of ways in which the standard of practice reflects this).
176. See supra notes 68-70 and accompanying text.
177. See supra note 71 and accompanying text.
178. Soc'y for Assisted Reprod. Tech., supra note 31.
179. Saldeen & Sundström, supra note 79, at 7.
180. Jason K. Min et al., What Is the Most Relevant Standard of Success in Assisted Reproduction? The Singleton, Term Gestation, Live Birth Rate per Cycle Initiated: The BESST Endpoint for Assisted Reproduction, 19 HUM. REPROD. 3, 3 (2004).
181. Id.
182. Id.
183. Id.
184. Id. This includes not only IVF but also GIFT (gamete intra-Fallopian transfer), ZIFT (zygote intra-Fallopian transfer), and MIFT (microinjection intra-Fallopian transfer) techniques.
185. Id. Because multiples can result from any procedure involving ovarian stimulation, this is an appropriate measure.
186. Id.
187. Michael J. Davies et al., What Is the Most Relevant Standard of Success in Assisted Reproduction? Assessing the BESST Index for Reproductive Treatment, 19 HUM. REPROD. 1049, 1050 (2004).
188. See F. Guerif et al., Limited Value of Morphological Assessment at Days 1 and 2 to Predict Blastocyst Development Potential: A Prospective Study Based on 4042 Embryos, 22 HUM. REPROD. 1973, 1973 (2007) (stating that selecting embryos with a high rate of success in assisted reproduction is difficult under current morphological evaluation methods and concluding that new evaluation criteria should be developed to improve success rates for elective single-embryo transfer).
189. See supra note 12.
190. See supra notes 105-06 and accompanying text.
191. Wrongful birth suits present a philosophical paradox - a child born with a physical or mental impairment as a result of the number of embryos transferred during IVF would have to argue that the doctor should not have implanted so many embryos. If fewer embryos had been transferred, the child plaintiff might never have been born at all. Commentators have called this the "nonidentity problem" because if the protection sought had been implemented, the person seeking protection would never have been born.
192. John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AM. J.L. & MED. 7, 8 (2004). Robertson also discusses the application of the non-identity problem to multiple gestation. Id. at 15.