kayte spector-bagdady, artificial parentage: screening parents for assisted reproductive...

$: Kayte Spector-Bagdady, Artificial Parentage: Screening Parents for Assisted Reproductive Technologies, 14 MICH. ST. J. MED. \u0026 L. 457 (2010)$
ARTIFICIAL PARENTAGE: SCREENING PARENTS FOR ASSISTEDREPRODUCTIVE TECHNOLOGIES

Kayte K. Spector-Bagdady*

I. IN TRO D UCTIO N ................................................................................................ 457II. THE ISSUE: CURRENT SCREENING PRACTICES .......................................... 459

A . 3% "M edical" Reasons ........................................................................... 460B. 1% "Emotional, Social, or Psychological" Reasons .......................... 461

Ill. THE LAW: FEDERAL AND STATE INFLUENCE ON ART ........................... 463IV. THE ETHICS: THE DEBATE BETWEEN ALARMING INCONSISTENCY AND

D IFFERIN G V ALUES ........................................................................................ 467A. The Case for "Alarming Inconsistency". ............................................ 468B. The Case for D iffering Values .............................................................. 471

V . P RO PO SAL .......................................................................................................... 472V I. C O N CLUSIO N .................................................................................................... 476

I. INTRODUCTION

Assisted Reproductive Technologies ("ART") are fertility treatments thatinvolve the manipulation of sperm and eggs.1 Over 500,000 babies have beenproduced by ART in the United States since 1981.2 The prevalence of ART isincreasing, and in 2002 2% of women of reproductive age made an appoint-ment with a fertility doctor.3 In January of 2009, after being implanted withsix embryos by Dr. Michael Kamrava, Nadya Suleman gave birth to octuplets

* Associate (admitted only in New York) at Hunton & Williams LLP, Food and Drug

Practice. B.A., Middlebury College; J.D. and M. Bioethics, University of Pennsylvania. TheAuthor would like to thank Professor Kristin Madison of the University of Pennsylvania, andProfessors Bert Spector and Maureen Kelleher of Northeastern University for their insights and

assistance.1. CTRS. FOR DISEASE CONTROL AND PREVENTION, DEP'T OF HEALTH AND HUMAN

SERVS., ASSISTED REPRODUCTIVE TECHNOIOGY: CDC REPRODUCTIVE HEALTH (2009),http://www.cdc.gov/ART/.

2. AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, ASRM: FREQUENTLY AsKED

QUESTIONS ABOUT INFERTIITY (2009), http://www.asrm.org/Patients/faqs.html ("Since 1985,when we began counting, through the end of 2006, almost 500,000 babies have been born inthe United States as a result of reported Assisted Reproductive Technology procedures.").

3. ASSISTED REPRODUCTIVE TECHNOLOGY: CDC REPRODUCTIVE HEALTH, supra note 1,http://www.cdc.gov/ART/.

458 14 MSU JOURNAL OF MEDICINE AND LAW 457 (2010)

and brought new attention to the issue of whether ART clinics are screeningpotential parents, whether they should be, and whether regulation is required. 4

In 2005, a study by Andrea Gurmankin et al. regarding "[s]creening prac-tices and beliefs of assisted reproductive technology programs" was pub-lished.5 This study focused on tracking the candidate "screening" processes atART clinics, which is when clinics take into consideration factors other thanmedical success or financial ability in deciding which patients to accept.6 Themethodology of this study consisted of sending a survey to the directors ofthe 369 ART programs associated with the Society for Assisted ReproductionTechnology, which make up over 95% of ART programs in the UnitedStates.' Fifty-eight percent of solicited programs responded. 8 The fertilityclinics as a whole reported that they turn away 4% of potential ART candi-dates per year: 3% for "medical reasons" and 1% for "emotional, social, orpsychological reasons." 9 Only 28% of clinics, however, reported having aformal policy that specifies the grounds on which they may turn away a givencandidate.' 0 The study ended with a call for "greater public and professionaldebate about the criteria that should be used to determine eligibility for ARTtreatment."'" The first part of this Article discusses the findings of this study.

One of the main problems with the study was while the survey askedclinics what they thought was "right," "wrong," or "responsible,"', 2 it neverclarified whether it was asking those questions from a legal perspective, froman ethical perspective, or both. The second part of this Article, therefore,clarifies what legal rights and duties candidates and clinics have during theART screening process. Because there are so few legal rights and duties, itbecomes apparent that ART screening, if held accountable to anything, cur-rently must be held accountable to ethical standards. The third part of thisArticle discusses what those ethical standards should be. Should the emphasisbe on screening candidates before they are accepted, or regulating doctorsafter the creation of the doctor/patient relationship? Ethicists disagree onwhether ethical standards should be uniformly regulated across clinics. 13

4. Geogia 'Octomom Bill' Would limit Embryo Implants, CNN, Mar. 3,2009,http://www.cnn.com/2009/US/03/03/georgia.octomom.bill/.

5. Andrea D. Gurmankin et al., Screening Practices and Beiefi of Assisted Reproductive TechnologvPrograms, 83 FERTIlITY AND STRIIATY 61 (2005).

6. Id. at 62.7. Id.8. Id. at 63.9. Id. at 63.

10. Id.11. Id at 67.12. Id at 64.13. See Ethics Comm. of the Am. Soc'y for Reprod. Med., Child-Rearing Abih't and the

Provision of Fertih Services, 82 FiERTILITY AND STIIITY S208, S211 (2004) [hereinafter ASRM];

see also Gurmankin et al., supra note 5, at 61-62, and Bonnie Steinbock, Do Variations in AssistedReprodutive Technology Programs' Screening Practices Incicate a Need for National Guidelines? AnotherPerspective, 84 FERTIuTY AND ST1.ILIJTY 1551 (2005).

Artificial Parentage

Their viewpoints seem to find common ground, however, in holding that aminimum standard of ethical care would include the following principles:

1) It is ethically wrong to screen candidates on the basis of stereotypeor prejudice; 14

2) It is ethically wrong to provide ART to a candidate where signifi-cant harm to the future child is likely;15 and

3) Therefore, it is the ethical responsibility of a clinic to screen candi-dates for significant harm to the future child.

The outstanding question remains whether more ethical guidance or ac-tual legal regulation is necessary in ART screening practices. This Article pro-poses that we should first require the reporting of ART clinics' screeningprocesses, rejected candidates, and the basis of those decisions to the Centersfor Disease Control (CDC). This would allow the ART community to prop-erly assess what kind of screening is taking place and force individual clinics tobe introspective of their own practices. Encouraging this entrance require-ment of candidate screening for significant harm to the future child should bebalanced by state tort law and a state regulatory cap on medical care rarely orever considered best practice. Within that permissible ethical space, however,doctors and patients need to be free to exercise their own personal best judg-ment on issues of professionalism and reproduction.

II. THE ISSUE: CURRENT SCREENING PRACTICES

One of the most interesting comparisons of data in the Gurrnankin et al.screening study was the contrast between the fact that 59% of reporting fertil-ity clinics agreed with the statement, "[e]veryone has a right to have a child,"with the fact that 62% also agreed, "ilt is wrong for me to help bring a childinto the world to be cared for by a parent who would be unfit in some way,"and 64% agreed that "I have the responsibiliy to consider a parent's fitnessbefore helping them conceive a child"'16 The fact that the majority of clinicsagreed to all three of these statements highlights a potential tension betweenthe perceived rights, wrongs, and duties of parents and clinicians, respectively.The study notes that the "key value" that guides clinic screening practicesseems to be "ensuring a prospective child's safety and welfare and not riskingthe welfare of the prospective mother.' 7 How does this key value play out inapplication to candidates, however? In their responses, did the cliniciansmean that everyone has a right to have a child naturally, but when they needassistance that right is subjugated to the wrong of a clinician to help an unfitparent procreate? Is it the wrong of helping an unfit parent procreate that

14. ASRM, supra note 13, at S211.15. Steinbock, supra note 13, at 1551.16. Gurmankin et al., supra note 5, at 64 (emphasis added).17. Id. at 64-65.


leads to the responsibility to consider a parents' fitness, or is it the responsibil-ity in the first place that creates the wrong? Were the clinics speaking of legalright versus moral wrong, or moral right versus legal wrong? Are they refer-ring to a paradigm of professional standards? Unfortunately the surveys donot elaborate, but some of the above concerns are brought into relief by look-ing at examples of the candidates that make up the 4% category of "unfit"parents.18 To do this, the Gurmankin et al. study posed seventeen "hypothet-ical candidates" and asked the responding clinics how likely they would be toturn them away. 19

A. 3% "Medical" Reasons

Potential "medical" reasons for turning down ART candidates includeconcerns regarding diabetes, HIV/AIDS and, to some extent, age. 20 The NewYork Task Force on Life and the Law suggests that ART physicians shouldscreen candidates for HIV, infectious diseases, and genetic diseases. 21 It statesthat "[p]hysicians may legitimate y decline to provide assisted reproductive ser-vices to individuals with medical conditions that make pregnancy dangerousor that are otherwise likely to cause harm to the resulting child." 22 They donot specify what type of "harm," how "likely" that harm must be, or whethertheir perceived "legitimacy" is moral, legal or professional. Clinics are indeedreporting that they would turn down candidates who have a risk of a danger-ous pregnancy: 55% of clinics said they would turn away a female candidatewith diabetes severe enough to create a 10% chance that pregnancy wouldlead to her death. 23 In the diabetes scenario, while it is still not clear whetherthey are speaking of an ethical or legal framework, it seems that the majorityof clinics feel that the right of a woman to have a child can be denied in theface of the wrong of the clinician in subjecting the woman to a 10% risk ofdeath; even if that is what the woman wanted. Whether the clinician wouldhave a responsibiliy to turn the patient away remains unclear from the study.

The justifications for denying a woman who is HIV positive seem morescientifically and socially complex. If an HIV positive woman utilizes antiviraltherapy during her pregnancy and elects a birth via cesarean, the risk oftransmission from mother to child during that time is estimated to be dimi-

18. Id. at 65.19. Id.20. Id.

21. N.Y. TASK FORCE ON LIFE AND THE LAw, EXECUTIVE SUMMARY OF TASK FORCE ON

IJFE AND THE LAw (2001) (emphasis added),http://www.heahh.state.ny.us/nysdoh/taskfce/execsum.htm [hereinafter TASK FORCE].

22. Id.23. Gurmankin et al., supra note 5, at 65.

Arifiial Parentage

nished from 25% to less than 2%.24 This is about the equivalent risk oftransmitting a congenital heart defect.2 5 In 2001, an article appearing in Fertil-ity and Sterility's "Modern Trends" argued that it was no longer "ethically norlegally justifiable" to turn down candidates for ART based on their HIV sta-tus.2 6 In 2007, the American College of Obstetricians and Gynecologists(ACOG) Committee on Ethics agreed that "[aissisted reproductive technolo-gy should not be denied to HIV-seropositive couples solely on the basis oftheir positive serostatus. ' '27 In 2005, however, 59% of clinics reported thatthey were "very or extremely likely" to turn away a female candidate who wasHIV positive. 28 Medical justifications for this statistic are less clear than forthe diabetes statistic, given the very low chance of HIV-transference. It ispossible that clinics are concerned that the woman would not follow the latestmedical advances, increasing the likelihood of infection, or that their clinic isnot equipped or trained to treat a woman with HIV. It is also possible thatclinics are assuming that a HIV-positive woman is a less "fit" parent becauseshe might have made poor choices in her past that led to her HIV-positivestatus. Without more information, we can only hypothesize on the balance ofrights and wrongs the clinics are, and are not, taking into consideration whenthey deny 59% of HIV-positive women access to ART.

B. 1% "Emotional, Social, or Psychological" Reasons

Many types of issues can fall under the "other" category of "emotional,social, or psychological" reasons that result in 1% of ART candidates beingrejected.2 9 Several groups seem to walk the line between "medical" and "emo-tional or social" including women who abuse substances and couples that arein physically abusive relationships,30 both of which are circumstances that canlead to physical and psychological harms. Physically abusive situations are themost likely to end in rejection, with 81% of clinics reporting that they were"very or extremely likely" to turn away a male candidate who injured his exist-ing child.31 In a physical abuse scenario, presumably the clinic's perception of

24. John Y. Phelps, Restricting Access of Human Immunodefidengy Virus (HIV)-SeropositivePatients to Inferti'y Senices: A Legal Anaysis of the Rights of Reproductive Endocrinologists and of HIV-Seropositive Patients, 88 FERTILITY AND STEuIITY 1483,1483 (2007).

25. d at 1488.26. Id. at 1483.27. Id at 1486.28. Gurmankin et al., supra note 5, at 65, Table 6.29. Id. at 63. Although candidates who are on welfare do not seem to fall under the "med-

ical" or "emotional, social, or psychological" category, 38% of candidates who wish to pay forART with social security checks are turned down. Id. at 65 tbl. 6.

30. Id Women addicted to marijuana were extremely likely to be turned away at 47% ofprograms. Id.

31. Id


the magnitude of wrongfulness of creating a child who may be abused is pre-dominant over the right of an abuser to create a child at their clinic.

Regarding candidates with perceived mental health problems, 16% ofclinics say they would turn away a woman who has attempted suicide, 13%would turn away a woman with bipolar disorder, and 9% would turn away acouple who said they wanted to replace a child who recently passed away. 32

Presumably in all of these situations, the clinic is promoting their "key value"of the health and welfare of mother and child, but on what basis are thesedecisions being made? When screening ART candidates, the New York TaskForce on Life and the Law suggests separation of "diagnosable mental illness"from generalized "harmful behaviors." 33 They recommend that a mental ill-ness should be diagnosed by a professional, and then the health and welfarebalance should be based on "ability to comply with treatment requirements,and likely parenting ability." 34 However, out of the 82% percent of clinicsthat reported candidates did not meet with a mental health professional, 11%still said they would turn down a woman with bipolar disorder, and 17% thatsaid they would turn down a woman with a history of attempted suicide. 35

The balance of rights, wrongs, and duties that the clinics are trying tomaintain in the case of mental illness are more opaque than cases of diabetes,for example, simply because the situations are so individualized-there is nooverarching statistic to weigh concerns against. If candidates do not meetwith a mental health professional, it is possible that screening decisions arebeing made based on assumptions or stereotypes about how someone with amental health disorder presents, or unsubstantiated claims from the candidatethat they have suffered from a mental illness-or have recovered-in the past.

The most "social" of the screening judgments seems to be imposedupon on gay and lesbian candidates; 48% of clinics reported being "very orextremely likely" to turn away a gay male couple who wants to use surrogacy,and 17% reported being likely to turn away a lesbian couple.36 Presumably,these clinics feel that a homosexual couple or a single-sex home fails thehealth and welfare standard to the extent that the wrong of the clinic to help ahomosexual candidate have a child is stronger than the candidate's right to thecreation of the child at the clinic. The scientific backing to this presumptionis lacking, however. In 1994, Pediatrics in Review compiled 12 studies of over300 children, and concluded that children of gay and lesbian parents are nodifferent psychologically or socially than children raised in households headedby heterosexual parents. 37 The Ethics Committee of the American Society for

32. Id.33. TASK FORCIS, supra note 21.34. Id.35. Gurmankin et al., spra note 5, at 64.36. Id. at 65, tbl. 6.37. Melanie A. Gold et al., Children of Gqy or Lesbian Parents, 15 PEDIATRICS IN REIv. 354,

354 (1994).

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Reproductive Medicine ("ASRM") has also found that "neither concernsabout the welfare of children nor the need to promote marriage justify deny-ing reproductive services to unmarried persons, including those who are gayor lesbian" because there is an "ethical obligation to treat all persons equally,regardless of their marital status or sexual orientation." 38 If the ASRM, whichlicenses and certifies clinics that conform to "high levels of ethical, moral andlegal conduct,"39 has stated that clinics have an ethical obligation not to dis-criminate on the basis of marital status or sexual orientation, are the clinicssimply applying their own ethical framework? If they are, is this a problem?

The fact that clinics are using their screening standards to turn down 4%of actual candidates (as opposed to hypothetical ones) raises questions aboutthe candidate's "right" to have children, the "wrong" of the clinic in helpingthem, and the "responsibility" clinics feel to consider fitness. This Article willnext discuss what the current law has to say about clinic's rights, wrongs, andduties, in an effort to disentangle what is legally required from what is ethicallyand medically sound.

III. THE LAW: FEDERAL AND STATE INFLUENCE ON ART

There is no constitutional or common law right of candidates to be acceptedas ART patients, but there may be a duty of care imposed once a patient hasbeen accepted. There is a constitutional right to privacy in reproduction, butthis is a right to be free from government interference as opposed to an affir-mative obligation of the state to provide medical services. 4° Under state tortlaw, the duty of care that a physician owes to a patient attaches only after thedoctor-patient relationship is created. 41 Therefore there is also no legal dutyowed to candidates that ART clinics turn down, as long as the physician doesnot run afoul of anti-discrimination law protecting people with handicaps42

and disabilities 43 if they are accepting federal funding. If an ART clinic ac-cepts a patient a duty will attach, and there is a minority of cases that find thata "special relationship" between a clinic and a patient might impose liability

38. Ethics Comm. of the Am. Soc'y for Reprod. Med., Access to Ferik Treatment by Gays,

Lesbians, and Unmanied Persons, 86 FERTILITY AND STERILITY 1333, 1333 (2006) (emphasis add-ed).

39. AM SoC'Y FOR REPROD. MED., ASRM LICENSURE/CERTIFCATION POLICY,

http://www.asrm.org/Professionals/Membership/licensure-certification-policy.html(last visited Feb. 19, 2010).

40. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).41. See, e.g., Agnew v. Parks, 343 P.2d 118, 123 (Cal. Dist. Ct. App. 1959); Scafide v. Baz-

zone, 962 So. 2d 585, 592 (Miss. Ct. App. 2006); Sullenger v. Setco Nw., Inc., 702 P.2d 1139,1140 (Or. Ct. App. 1995).

42. See 29 U.S.C.A. 794(a) (West 2009).43. See 42 U.S.C.A. § 12112(d) (West 2009).

464 14 MSUJOURNAL OF MEDICINE AND LAW 457 (2010)

for damages that result from a "foreseeable harm" for which the clinic did notscreen.44

The Supreme Court has recognized that procreation is "one of the basiccivil rights of man" and "fundamental to the very existence and survival of therace. '45 The constitutional "right of privacy" regarding reproduction "is theright of the individual ... to be free from unwarranted governmental intrusion into.• .the decision whether to bear or beget a child." 46 However, it is not an af-firmative right to medical treatment or care.47 This constitutional right toprivacy would also only apply to the government itself or government agen-cies. Therefore, an infertile couple trying to gain access to assisted reproduc-tion would have no constitutional or federal right to those services at a privateclinic.

A fertility doctor does not have a common law duty to treat an ARTcandidate either. A legal duty under state tort law is created by the existenceof a legal obligation to a specific person,48 and therefore courts will not im-pose a duty-to-treat until after a doctor patient relationship has been created.49

Even in the Hippocratic Oath, the moral professional oath taken by doctors,there is an assumption of "a preexisting relationship of patient and physician,which relationship in its inception is basically contractual and wholly volunta-ry, created by agreement, express or implied, and which by its terms may begeneral or limited."50 Legally, fertility doctors have the right to screen theircandidates before accepting them as patients.5'

A narrow, but possible, limitation on a doctor's right to screen candi-dates is found in federal and state anti-discrimination laws. The federal Amer-icans with Disabilities Act (ADA) prohibits discrimination in the workplaceand in public accommodations based on an individual's disability, whichwould include the office of a health care provider or a hospital.5 2 The Su-preme Court has found that being HIV-positive satisfies the definition of

44. See, e.g., Stiver v. Parker, 975 F.2d 261, 268 (6th Cir. 1992).45. Skinner v. Okla., 316 U.S. 535, 541 (1942).46. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis added).47. Wideman v. Shallowford Cmty. Hosp., 826 F.2d 1030, 1032 (11th Cir. 1987). An

affirmative obligation has been found, through the Eighth Amendment's prohibition on crueland unusual punishment as incorporated by the Fourteenth Amendment, for a state to providemedical services when the state is exercising significant control over an individual, as when theindividual is in jail. See Estelle v. Gamble, 429 U.S. 97, 103 (1976). Clearly, the Court's EighthAmendment basis would not apply to the fertility treatment context.

48. PRossl-R AND KEIETON ON TORTs 5 53, at 356-58 (W. Page Keeton et al., eds., WestPublishing Co. 5th ed. 1984) (1941).

49. See, e.g., Agnew v. Parks, 343 P.2d 118, 123 (Cal. Dist. Ct. App. 1959); Scafide v. Baz-zone, 962 So. 2d 585, 592 (Miss. Ct. App. 2006); Sullenger v. Setco Nw., Inc., 702 P.2d 1139,1140 (Or. Ct. App. 1995).

50. Agnew, 343 P.2d at 123.51. See ie; Scafide, 962 So. 2d at 592; Sulkenger, 702 P.2d. at 1140.52. See 42 U.S.C.A. §§ 12112,12181 (West 2009).

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"disability" under the ADA. 53 The First Circuit has also found that a fertilityclinic cannot refuse to treat a HIV-positive candidate only on the basis oftheir HIV status, but may refer that candidate to another provider if there is amedical justification for doing so that would benefit the patient.54 An ADAclaim could also theoretically be brought by a candidate with mental disabili-ties such as depression.55 Both an HIV-positive or mentally ill candidate,however, would have to prove that they were otherwise "qualified" under theADA to receive services. 56 Individual state anti-discrimination law might af-ford candidates more protection. 57 In sum, however, there is no constitution-al or common law right to access ART, only to be free from discrimination innarrow situations.

Once a candidate has been accepted as a patient however, a "special rela-tionship" has sometimes been found between an ART clinic and the patientor potential child.58 A special relationship between parties can be created by aperson who "voluntarily takes the custody of another under circumstancessuch as to deprive the other of his normal opportunities for protection."5 9

This special relationship was found in Stiver v. Parker to impose an affirmativeduty of care on an ART clinic to prevent "foreseeable risks" to the patients,including the risk that a surrogate could catch a sexually transmitted diseasefrom sperm.60

In 1997, the Superior Court of Philadelphia heard a case, Huddeston v. In-fertilioy Center of America, Inc., regarding a surrogate mother who surrendered ababy to the intended father, only to have the father beat the child to death.61

The.court found that the surrogate mother was the proper plaintiff to bring a

53. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).54. See Lesley v. Chie, 250 F.3d 47, 54 (1st Cit. 2001) ("As Congress made clear in the

legislative history of the Americans with Disabilities Act, the disability laws are not intended toprevent a physician from referring a disabled patient if the disability itself creates specializedcomplications for the patient's health which the [referring] physician lacks the experience orknowledge to address.").

55. See Olmstead v. L.C. ex re. Zimring, 527 U.S. 581, 607 (1999) ("[U]nder Title II of theADA, States are required to provide community based treatment for persons with mental dis-abilities when the State's treatment professionals determine that such placement is appropriate,the affected persons do not oppose such treatment, and the placement can be reasonably ac-commodated, taking into account the resources available to the State and the needs of otherswith mental disabilities.").

56. See, e.g., Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996).57. Alex Long, State Anti-Discriminaion Law as a Modelfor Amending the Americans with Dis-

abi/iiesAct, 65 U. PITr. L. REv. 597, 601 (2004) ("[N]umerous states have provided even greaterprotection from discrimination than that found in federal legislation .... ).

58. Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa. Super. Ct. 1997).59. RESTATEMENT (SECOND) OF TORTS § 314 A (1965).

60. 975 F.2d 261,268 (6th Cir. 1992).61. See Huddkston, 700 A.2d at 456.


wrongful death and survival action.62 It also found that a special relationshipexisted between the surrogacy clinic, its clients, and the resulting child:

[A] business operating for the sole purpose of organizing and super-vising the very delicate process of creating a child, which reaps hand-some profits from such endeavor, must be held accountable for theforeseeable risks of the surrogacy undertaking because a "special rela-tionship" exists between the surrogacy business, its client-participants, and, most especially, the child which the surrogacy un-dertaking creates. 63

The court framed the death of the child not as an issue of whether it wasforeseeable "that a sperm-donor father would brutally murder his biologicalchild," but just whether child abuse was foreseeable in a surrogacy situation ingeneral. 64 They concluded that it was by pointing to other states which re-quired psychological testing to "ensure that the surrogate will be emotionallyable to part with her child and that the child born of a surrogacy contract willbe placed in the care of persons who will give the child love, affection andguidance." 65 The court's reasoning was that if some states went so far as torequire psychological testing to make sure that candidates would treat thechild with "love, affection and guidance," then the abuse was foreseeable. 66

Stiver and Huddleston do not apply directly to screening of candidates atART clinics. The special relationships in these cases are between the clinic,the patients, and the resulting child, and therefore do not create a special rela-tionship between a fertility candidate and a doctor. In line with state tort law ingeneral, the doctor-patient relationship must be created before any duty canbe imposed.67 The cases do seem to stand for the proposition that after acandidate becomes a patient, a clinic can be held liable for failing to screen fora foreseeable harm, which could have been done when the patient was a can-didate.6s Even though only a few state cases exist that apply the "special rela-tionship" in this way, it is possible that under state tort law an ART clinicmight be found negligent for not screening for a foreseeable harm, if the doc-tor-patient relationship is created, and damages result.69

Applying federal and state law to ART clinic screening practices helpsclarify several things. First, everyone has a constitutional right to privacy inprocreation, but a right to privacy cannot be asserted when assisted procrea-

62. Id. at 457.63. Id. at 460.64. Id.65. Id.66. Id.67. See, e.g., Agnew v. Parks, 343 P.2d 118, 123 (Cal. Dist. Ct. App. 1959); Scafide v. Baz-


68. See Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa. Super. Ct. 1997);Stiver v. Parker, 975 F.2d 261, 268 (6th Cir. 1992).

69. See Huddkston, 700 A.2d at 460; Sliver, 975 F.2d at 268.

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tion is necessary because privacy is a negative right from state interference 70 asopposed to a positive right to state assistance. Neither the state, nor privatefacilities, has any affirmative obligation to provide medical services to ARTcandidates. 71 If a hospital or clinic accepts federal funding, they have an obli-gation not to discriminate on the basis of a handicap 72 or disability,73 but onceagain this is only a negative right to be free from discrimination. State tort lawhas sporadically created a "special relationship" between a patient, a clinic, anda resulting child that might be found to require screening for a foreseeableharm if damages result, but this duty only applies after the candidate has beenaccepted as a patient-a doctor has no duty to an ART candidate she rejects. 74

This discussion clarifies that while the majority of clinics agree that "eve-ryone has a right to have a child," couples who need ART have no legal rightto be assisted by reproductive technologies. When clinics agree that "I havethe responsibility to consider a parent's fitness before helping them conceive achild," the legal actuality is that a clinic might be found liable for not screeningonly in rare circumstances if they accept a candidate as a patient and damagesresult from a foreseeable problem. Lastly, when clinics agree that "it is wrongfor me to help bring a child into the world to be cared for by a parent whowould be unfit in some way," a legal duty only applies after the doctor-patientrelationship has been created. The only sentiment that the majority of clinicsagreed to arising from law is that clinics might be found to have a duty toscreen potential parents once they are accepted as patients. The majority ofthe rights, wrongs, and responsibilities that the clinics assign to candidates,therefore, must be based on an ethical framework.

IV.THE ETHICS: THE DEBATE BETWEEN ALARMING INCONSISTENCY

AND DIFFERING VALUES

The second step in understanding the implications of the Gurmankin etal. study and the Suleman/Kamrava case is to discuss applicable ethics. Amajor ethical issue discussed by the Gurmankin et al. study is the fact thatART clinics do not have uniform screening mechanisms or standards. 75 Thestudy denotes an ethical concern specifically about the "unequal treatment ofinfertile couples" where a couple might be denied services at one clinic andaccepted by another resulting in their "inequitable treatment."76 The ASRM,however, believes that no one "uniform set of rules" can be agreed to and

70. SeeAgnew, 343 P.2d at 123; Scafide, 962 So. 2d at 592; Sullenger, 702 P.2d at 1140.71. Wideman v. Shallowford Cmty. Hosp. Inc., 826 F.2d 1030, 1032 (11th Cir. 1987).72. 29 U.S.C.A. § 794 (West 2009).73. 42 U.S.C.A. § 12112 (West 2009).74. See, e.g., Agnew v. Parks, 343 P.2d 118, 123 (Cal. Dist. Ct. App. 1959); Scafide v. Baz-


75. Gurmankin et al., sapra note 5, at 62.76. Id.


believes that ethics require that physicians choose their own patients as theysee fit unless "significant harm to ... future child[ren] is likely."77 This debateis important because, as the law renders so little guidance, the critical questionis whether clinics should be permitted to define their own rights, wrongs, andresponsibilities or whether clinics should uniformly follow the suggestions ofprofessional guidelines.

A. The Case for "Alarming Inconsistency"

When the Gurmankin et al. study came out, the University of Pennsylva-nia put out a press release on the article declaiming the "alarming inconsisten-cy" in clinic approaches to screening candidates.7 8 Arthur Caplan, one of theco-authors of the study, concluded: "The frequency of these variations high-lights the need for a formal policy and common guidelines for candidatescreening utilized by all ART facilities. '79 The study itself notes the concernthat inconsistency "reflect[s] inequitable treatment of infertile couples," 8

however "[t]here might be merit in setting limits as to who can use ART ser-vices to conceive."81

The study does not elaborate on what the merits or limitations might be,but Caplan has publicly supported the position of setting parameters beforeand after the publication of the study.82 In 2001 in Tucson, Arizona, a youngsingle woman with developmental disabilities named Claudia made headlineswhen she attempted artificial insemination for the second time-after at-tempting to kill herself after her first ART pregnancy was lost.83 In an inter-view at the time, Caplan said, "[a]s this case proves, there are no guidelines, norules or regulations governing who becomes pregnant with this technology,and there should be .... No one has to make sure the woman is capable ofcaring for a child. No one has to consider if she will be a fit parent."'84 Clau-dia's fertility doctor defended himself by arguing that "we don't play God. Idon't tell people, 'You can't get pregnant.' I don't tell people, 'You're not fitto have a child.' These are political judgments, and for doctors to be makingthem can be dangerous."85

77. ASRM, supra note 13, at S211.78. Press Release, University of Pennsylvania Health System, Penn Study Emphasizes

Need for National Guidelines for Assisted Reproductive Technology Programs (an. 18, 2005),

available at http://www.uphs.upenn.edu/news/NewsReleases/jans/ARTPguideines.htm.79. Steinbock, supra note 13, at 1551.80. Gurmankin et al., supra note 5, at 62.

81. Id. at 61.

82. Carla McClain, Who's fit' to Become a Mother? Local Doctor Defends Inseminating Jobless,Disabled WomanArificia/4, ARIZ. DAILY STAR, Feb. 14, 2001, at 1.

83. Id.84. Id85. Id

Arlificial Parentage

The difference between the case of Claudia and the case of Suleman andKamrava is that Claudia presented a candidate screening issue; Suleman pre-sented a screening and an embryo implantation best practices issue. In Clau-dia's case, the question was whether a suicidal single woman with disabilitiesand no access to financial support should be accepted as an ART patient. ForSuleman, the first question was whether a person with a history of depres-sion,86 who is unemployed and receiving food stamps, and with six children,three of whom were disabled,87 should be accepted as an ART patient. Thesecond question, however, was whether Kamrava should have implanted sixembryos (two of which split)88 under any circumstances in a healthy 33-year-old with a history of successful IVF babies. The reported justification hasbeen that Suleman chose to use, rather than destroy, the extra cryopreservedembryos she had created 89 -but should patient moral considerations such asthese be allowed to outweigh ASRM professional suggestions that no morethan two embryos should be implanted in women under 35?90 Also, leftoverembryos need not be discarded as they can be further preserved or donatedfor other patients to use.

This discussion seems to bring up several issues, the first being a ques-tion of rights. Claudia's fertility doctor was not speculating on whether shehas a right to reproduce; his argument was that it was not up to him as herdoctor to interfere with the decision.91 Caplan states that there is no "right toreproduce" with ART, only a "right to be left alone," 92 which is correct from alegal standpoint. He also argues that there should be official guidelines, rules,or regulations requiring doctors to make sure candidates are "capable of car-ing for a child. ' 93 When these rules and regulations are being promulgated,however, the protection of couples who are disabled, mentally ill, or gay, dur-ing screening must buttress the backlash from cases such as Claudia andSuleman. The medical profession is largely self-regulating, and the law only

86. Sophie Tedmanson, Octupkts Mother Nadya Sukman: I Longed for a Huge Fami, TIMES

ONLINE (London), Feb. 6, 2009,http://www.timesonline.co.uk/tol/life and-style/health/article5673172.ecestyle/health/article5673172.ece.

87. Mike Celizic, First Look: Octuplet Mom Shows offBabies, TODAY, Feb. 9, 2009,http://www.msnbc.msn.com/id/29086126/.

88. Carly Hart, Editorial, Nadya Suleman's Feriko Doc, Dr. Michael Kamrava, is Back in theNewsfor Another Multiple Birth Pregnany,http://www.associatedcontent.com/article/1470413/nadya sulemans-ferdlty-doc-dr nichael.htnl (last visited Feb. 21, 2010).

89. Alison Stateman, The Octuplets Mom Speaks, and the Questions Grow, TMtE.coM, Feb. 7,2009, http://www.time.com/time/nation/article/0,8599,1877962,00.html.

90. Practice Comm. of the Soc'y for Assisted Reprod. Tech. & Practice Comm. of theAm. Soc'y for Reprod. Med., Guidelines on Number of Embryos Tranferred, 92 J. FERTILITY &STERILITY 1518, 1518 (2009).

91. McClain, supra note 82.92. Id.93. Id


steps in when this self-regulation fails; for example, when a clinic is illegallydiscriminating otherwise qualified individuals on the basis of a disability.94

"[H]ard cases ... make bad law," 95 however, so we should be cautious whenmandating medical practices in the wake of the above examples.

The Gurmankin et al. study elaborates on several "important ethicalconcerns" that restricting access to ART could create. 96 First, the study ar-gues that "restrictions seem to intrude on a fundamental freedom by placingan unfair burden on those not fortunate enough to be able to have childrenwithout technological and medical assistance. '97 The "fundamental freedom"it is discussing seems to be reproduction with or without assistance. The "un-fair burden" is the "dual standard for parenthood" that parents with fertilityproblems face when they are "required to meet a different standard for pa-renthood than that applying to fertile couples (i.e., no standard at all)." 98 Thissentiment may be true with regards to candidate screening at the outset, butcould not justify the implantation of an excess number of embryos once acandidate is accepted as a patient. Having three, four, or even eight childrenat once is not reflective of everyday experience. Prohibiting excess embryoimplantation does not create a "dual standard"-it enforces an existing one.

The study also pointed out that the reporting clinics did not share thesame beliefs as one another regarding "what constitutes a fit parent or an in-appropriate risk to a prospective child." 99 The study suggested that this wasan issue because "as infertile couples navigate through the stressful process ofattempting to overcome infertility, they might encounter differences as towhere they might or might not be deemed eligible for therapy"'10 which is"inequitable."'' 1 It is not clear whether the study is suggesting that uniformityis an issue because candidates should know ahead of time whether they will beallowed access to ART, or because candidates in the same category, for exam-ple female candidates with HIV, should be treated the same at all clinics.

The last ethical issue pointed out by the study is that by screening outpotential candidates, the clinics were entitling themselves to "dictate the quali-fications of parenthood."' 0 2 Even if the screening was "well-intended," thestudy worried that it "could perhaps slide into discriminatory or eugenic prac-tices to prevent those who are poor, who follow nonmainstream lifestyles, orwho are members of a racial minority from having children."'01 3 The only wayto take the power of dictating the "qualifications of parenthood" out of clinics

94. See 42 U.S.C.A. § 12112 (West 2009).95. N. Sees. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).96. Gurmankin et al., supra note 5, at 61.97. Id.98. Id at 62.99. Id at 66.

100. Id. at 67.101. Id at 62.102. Id103. Id

Arifidal Parentage 471

hands would be to require them to follow standardized legal or ethical guide-lines. Caplan argued in Claudia's'04 and Suleman's 05 cases that not only is itethical to screen unfit candidates, there is an ethical duty to do so. Gurman-kin et al. seem to add that this screening is only ethical if it is applied uniform-ly. The ASRM does not agree. 10 6

B. The Case for Differing Values

The ASRM runs a voluntary accreditation program which requires thatfertility clinics follow its recommended guidelines and practice standards, v07

which, as mentioned above, includes suggested numbers of embryos to im-plant.10 8 Five months before the Gurmankin et al. study came out, the ASRMpublished an article on clinic screening entitled Child-Rearing Abiliy and theProvision of Fertiliy Services.10 9 The article suggested that infertile persons havethe same "rights and interests" in reproducing that fertile people do, andtherefore, "they should not be denied services merely because they are infer-tile." 110 The ASRM distinguished these rights and interests from constitution-al and legal rights by pointing out that "[o]ffspring welfare is a valid considera-tion that fertility programs may take into account in selecting patients andproviding services as long as they do not discriminate on the basis of disabilityor other impermissible factor" which would otherwise violate federal or statelaw." 1 The crux of its ethical argument was that physicians could make theirown "moral" decisions about whether to accept candidates as patients, butthose decisions had to be based on "empirical evidence, not stereotype orprejudice." 112 The ASRM suggested that clinics develop individual "explicitpolicies and procedures" on how the clinic should screen their patients, andon what basis decisions should be made." 3 The other definitive ethical stanceit took was that physicians were "morally obligated" to turn down patientswhen "significant harm to future children is likely."'" 4

A year later, in the face of the screening inconsistencies highlighted bythe Gurmankin et al. study, the ASRM grappled with whether ART clinicswere "ethically" required to turn away candidates they do not believe would

104. See McClain, supra note 82.105. See Celizic, supra note 87.106. ASRM, supra note 13, at S211.107. Richard F. Storrow, The Bioethics of Prospective Parenthood- In Pursuit of the Proper Standard

for Gatekeeping in Inferfily Cnics, 28 CARDozo L. Riv. 2283, 2286-87 (2007).108. Guidelines on Number of Embyos Tranetred, supra note 90, at S163.109. See ASRM, supra note 13, at S210.110. Id. at S210.111. Id. at S211.112. Id.113. Id.114. Id


be "minimally competent rearers." 5 Bonnie Steinbock, speaking for theASRM, stated that there was no one answer to the question of professionalresponsibility because "reasonable people" could disagree, based on disputesover "risk factors and the degree of risk to offspring," on what made a rearer"minimally competent." 116 She concluded that "[p]rograms ethically canadopt a policy of providing fertility services to all persons who medically qual-ify, except when there is a clear risk of significant harm to future offspring.But programs also ethically can refuse to treat individuals out of well-substantiated concern for the children who would result." 117 Even though theGurmankin et al. study promoted uniformity, the ASRM countered that no"uniform set of rules" could be adopted that would be the perfect ethical bal-ance of "respect for procreative liberty and concern for the welfare ofoffspring."" 8 ARSM disagreed that the differences in clinic screening practic-es revealed an "alarming inconsistency," and instead believed that the differ-ences simply "reflect[ed] the fact that intelligent, concerned individuals candiffer in their values, as well as in their interpretations of the facts." 119

On the one hand, then, is the concern by Gurmankin et al. that allowingclinics to make their own screening choices leads to "unfair burdens," and"inequitable treatment " that could succumb to the slippery slope of discrimi-nation.120 On the other hand, we have the ASRM, the type of society able topromulgate such guidelines, countering that there is no one set of guidelinesthat is "ethical.' 121 However, there seems to be a baseline agreement that eth-ics should at least inform the clinic that 1) it is wrong to base screening onstereotype or prejudice, 122 2) it is wrong to provide ART where significantharm to the future child is likely, 123 and therefore 3) it is also responsible andright for a clinic to screen candidates for significant future harm to the child.This Article will assume going forward that this is the minimum ethical stan-dard of care. There could be other potential ethical duties, but ASRM at leastdoes not believe that agreement on these obligations is so uniform as to re-quire universal adoption. 124

V. PROPOSAL

The law regarding screening at ART clinics is currently limited to ensur-ing that clinics do not illegally discriminate against otherwise qualified candi-

115. Steinbock, supra note 13, at 1551.116. Id117. Id.118. Id. at 1552.119. Id.120. Gurmankin et al., supra note 5, at 61-62.121. Steinbock, supra note 13, at 1551.122. ASRM, supra note 13, at S211.123. Steinbock, supra note 13, at 1551.124. Id

Arlificial Parentage 473

dates, 125 and infrequently holding clinics responsible for harm to patients andchildren caused by foreseeable deficiencies in their screening. 2 6 Whetherlegal oversight should be extended depends on whether clinics can be self-regulated to the extent that they are meeting their baseline ethical and medicalduties.

The first issue is candidate screening practices. On the one hand wehave Claudia and Suleman, patients that quite possibly should have beenscreened out on the basis of harm to the mother or future child. The fact that43% of clinics agreed with the statement that "I do not have the right to try tostop anyone from attempting to conceive a child,"'1 7 makes it apparent that atleast a substantial minority of clinics do not believe they have a professionalresponsibility to screen out candidates who pose a significant harm to thefuture child.

On the other hand, we have the possibility that clinics are turning downcandidates on the basis of stereotypes or prejudice. Refusing a candidate onthe basis of something a clinic does not collect information on, like mentalhealth or sexual orientation, is concerning. The relationship between whatcandidates the clinics reported that they would hypothetically turn down, andwhat candidates they actually turn down is unclear from the Gurmankin et al.study. It is possible that the respondent was only agreeing that, if she knewhypothetically a candidate was gay, she would turn him down; but the clinicdoes not collect that type of information, so the hypothetical is irrelevant. Itis also possible that although clinics might agree with the sentiment that theydo not have the "right" to try to "stop anyone" from attempting to conceive achild, they might have interpreted that only as a legal right but still perceive aresponsibility to only render ART services to candidates that they do not fore-see being a significant harm to the future child. The study brought the prob-lem to light, but it did not provide enough information to determine whetherthe fact that there are no rules or regulations creates a deviation from mini-mum ethical practices as established above.

The second issue arises once the physician uses her discretion to accept ascreened candidate. Should there be any further regulatory or common lawconstraints? The cases of Sliver and Huddleston suggest that there should betort law accountability regarding faulty screening decisions.128 Also, Sulemanand Kamrava have unfortunately shown us that patient/doctor discretion isnot always enough. Multiple births increase the risk for infants of prematurebirth, which in turn can cause intracerebral hemorrhage, intestinal problems,developmental delays, learning disabilities and lifetime neurological conditions

125. ASRM, supra note 13, at S210.126. See Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa. Super. Ct. 1997);

Stiver v. Parker, 975 F.2d 261,268 (6th Cir. 1992).127. Gurmankin et al., supra note 5, at 64, tU. 4.128. See Huddleston, 700 A.2d at 460; Sfiver, 975 F.2d at 268.


such as cerebral palsy.129 If these risks are not enough to deter a parent orphysician from implanting three times the recommended embryos, then it islikely that medical best practice regulations are needed as well.

What is necessary is to introduce a third party, or countervailing interest,at both ends of ART practices. We have seen through examples that we can-not simply trust the direct "market" of ART candidates and doctors to pro-duce what is ethically and medically sound for all patients in all situations.Because both ends of the spectrum of screening and implantation producedifferent issues, the third party interest should be different as well. At theoutset of involvement with ART there should be a mandated individualscreening reporting requirement, and on the other end, state regulatory andtort protections of the mother and future child. In between the mandates,there is room for the status quo of doctor/patient discretion.

The LegaVIEthical/MtedicaI Standard of ART Care

L'I'DaIDUAL Dtr/Paaimt Disrin UNIFORM

SCREENING STATEREGULATORYREPORTING AND TORT

REQCUREMENT PROTECTIONS

When a candidate presents at an ART clinic there should be mandatedreporting of individualized screening, allowing the clinic to use its discretionwith the baseline ethical requirement of empirical evidence of likely significantharm to the future child. Some argue that this ethical standard should be ap-plied uniformly.'30 ASRM counters that professional discretion is not uni-form.131 Americans have a constitutional right to privacy in their reproductivelives, and physicians have professional discretion in the art of medicine. Untilthese rights create harm, thereby "warrant[ing] government intrusion,"'132 thedefault rule of candidate/physician discretion should not be taken away. Toassess whether the current screening processes are actually creating harm,however, we need more information. We should mandate a screening report-ing requirement to the CDC, which already collects information on AssistedReproductive Technology success rates, birth defects, and birth weight. 33

This mandated reporting should include:

129. Madison Park, Extreme Mulple Births Cany Tremendous Risks, CNN.coM, Jan. 28. 2009,http://www.cnn.com/2009/HEALTH/01 /28/octuplet.risks/index.html.

130. Gurmankin et al., supra note 5, at 62; Steinbock, supra note 13, at 1551.131. ASRM, supranote 13, at $211.132. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).133. CTRS. FOR DISEASE CONTROL AND PREVENTION, DEP'T OF HEALTH AND HUMAN

SERVS., ASSISTED REPRODUCTIVE TECHNOLOGY: CDC REPRODUCTIVE HEALTH (2009),http://www.cdc.gov/ART/.

Arificial Parentage 475

1) Whether parental fitness screening is employed by the clinic andwhat it consists of;2) The number of candidates who are being turned away from theclinic for any reason;3) The documented reason for individual decisions; and4) The empirical evidence supporting those decisions. 134

This mandated reporting will address three issues. First, it will protectdoctor's professional self-regulating discretion in a situation where it is unclearwhether the minimum ethical standard of care is being met. Second, the re-sulting information will help clarify whether this standard is met to informpossible future regulatory decisions. Lastly, the act of requiring reporting willlead clinics to become self-aware of whom they are turning away and, moreimportantly, why. It is likely that in the face of reporting, clinics will con-sciously or unconsciously require more empirical analysis of their own deci-sions to inform both the public and themselves.

The other end of the ART continuum should be countered by state clin-ical standards including tort law and maximum implantation regulations. Wehave seen in Stiver and Huddleston that state tort law can create a "special rela-tionship" between a patient, a clinic, and a resulting child, that can be foundto require screening for a foreseeable harm if damages result.135 This may beavailable to enforce the ethical requirement of screening out significant harmto the future child.

Another proposed protection is that of maximum implantation guide-lines. The ASRM's implantation guidelines are carefully crafted to differen-tiate between cleavage-stage embryos, blastocysts, and four age ranges, andrun the gamut from a suggested implantation of one to five embryos. 136

Georgia State Senator Ralph Hudgens, by contrast, introduced legislation inMarch 2009, which would limit implantation of embryos in Georgia to twofor women under 40, and three for over forty' 37-notably more restrictivethan the ASRM guidelines.

Over-broad constraints should not be implemented in the face of Sule-man/Kamrava backlash. Good social policy cannot be made based on out-liers. The goal should be granting patients and physicians personal and pro-fessional privacy unless there is reason to suspect harm. The ASRM guide-lines are carefully laid out to account for changes in age, prognosis, and thetype of embryo. These are the guidelines that should be adopted at the statelevel. However, even these guidelines are based on the laws of averages, and

134. This reporting would have to be carefully crafted to avoid running afoul of "protectedhealth information" safeguards in the Health Information and Protection Accountability Act.See 29 U.S.C.A. § 1181 (West 2009).

135. See Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa. Super. Ct. 1997);Stiver v. Parker, 975 F.2d 261, 268 (6th Cir. 1992).

136. Guidelines on Number ofEmbyos Tranfered, supra note 90, at S164.137. Georgia 'Octomom Bill' Would limit Embrjo Implants, supra note 4.


therefore maximum-embryo transference regulations should include a waiveroption where a physician can petition for an exception for an exceptionalclient. 138

VI. CONCLUSION

In conclusion, the Gurmankin et al. study and the Suleman/Kamravacase have raised questions of what is legally, ethically, and medically sound inthe "wild west"139 of ART. Few legal restrictions currently exist. Few ethic-ists agree on what the minimal ethical standard of care should be, but thereseems to be strong support that it would include empirical evidence of likelysignificant harm to the future child. Also, because of the serious concern forthe health of multiple birth pregnancies, the ASRM has come out withnuanced and thoughtful medical implantation guidelines. Therefore, the legal,ethical, and medical standard of ART care should include mandated reportingof screening techniques to promote patient and doctor discretion, and tort lawprotection and regulatory mandates as the cap of paternal uniform protection.

138. There is the alternative possibility of fetal reduction once the embryos have been im-planted, which is the technique used to reduce the number of fetuses a woman is carrying in

order to diminish the risks associated with multiple gestation and birth. See Chapter 13: .FetalReduction, 87 FERTIliTY AND STERILITY S44, S44 (2007). However, in light of the interest inprocreative liberty, and varied religious and moral beliefs, fetal reduction should not be en-

forced as a matter of contractual agreement. It is therefore not helpful in limiting the numberof premature babies that are born.

139. See generaly Alexander N. Hecht, The Wild Wild West: Inadequate Regulation of AssistedReproductive Technolog, 1 Hous. J. HEALTH L. & Po'Y 227 (2001).

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