ABA discusses reproductive laws in light of octuplet fiasco

BOSTON—Though an American Bar Association meeting Feb. 14 was supposed to have centered around several “hot topics” in the role of law in bioethics, the panel spent the majority of its two hours discussing the ethics of assisted reproductive technology and the ethics surrounding “octo-mom” Nadya Suleman’s recent media upset.

Initial reports suggested that Suleman, who has six children from previous reproductive treatments, had taken fertility drugs. Doctors thought this because most in-vitro fertilization procedures produce only one or two babies. However, Suleman’s doctor implanted six frozen embryos leftover from previous treatments, and two of those split into twins.

Bruce Wilder, a Pittsburgh family-law attorney specializing in genetics and reproductive technology, said he thinks a line has been drawn in the field and that Suleman’s doctor crossed it.

“Basically they have guidelines for clinics and certainly this is clearly against all their guidelines. He’s probably going to lose his license,” Wilder said.

According to Nanette Elster, director of the Health Law Institute at DePaul University in Chicago, someone of Suleman’s genetic profile should have a maximum of two embryos implanted. Elster went on to say that Suleman’s in-vitro specialist, Dr. Michael Kamrava, is licensed in California and has the third-lowest success rating in the country.

“Between 1996 and 2006, the number of fertility centers transferring four or more embryos in any given cycle has decreased probably somewhere between 20 and 30 percent,” Elster said.

Because of this data, Elster said she thinks assisted reproductive technology experts have listened and are working to prevent cases of high-order multiples and dangerous births by means of self-regulation.

Additionally, Elster brought up the difference between reproductive rights, or procreative liberty, and parental rights.

“We’re blurring them a little bit here with this because we don’t know who’s going to necessarily be a good parent once there’s a child in existence,” she said.

According to second year Hamline Law School student Doug Colella, the biggest dilemma in the octuplet case combines family law and parenting.

“Is [Nadya Suleman] going to be a stable mother? She already has six kids, now she has 14 total,” Colella said.

Colella questioned whether assisted reproductive technology can be more regulated.

“Does the doctor have the authority to do this and say, ‘Well, you know, I put six of them in because the first five might not have worked, and we got really lucky here’?” he asked.

Fertility centers are not strictly regulated, meaning they have a lot of leeway, Elster said.

“They do have some guidelines. Other countries, in their overarching legislations, say the best interest of the child should be paramount,” she continued.

These countries include Australia, Canada and the United Kingdom. Nothing in the U.S., however, states that the fertility centers should act as gatekeepers, deciding who should have a certain number of children or why.

“We have cultural or religious norms that suggest that larger families are better families: Orthodox Jews, Mormons. Where do you draw the line and say you can only do [fertility treatments] to have so many kids?” Elster questioned.

Another issue the Suleman octuplet case raises is the risk of genetic deficiencies in carrying a large number of multiples. Three of the mother’s older children are handicapped, including having autism and other special needs.

Additionally, the financial cost of raising a large family is very high, especially considering that Suleman, a single mother, already receives food stamps and has created a website, www.thenadyasulemanfamily.com, to accept donations via major credit cards and paypal.

Because of all the problems Suleman’s octuplets have brought to light, Elster said she hopes the laws can change to reflect new technologies and possibilities.

“[Reproductive rights funding] is probably not going to be on the federal radar as much as it will be on state radar,” Elster said. “It will be some time till this is a front burner issue on the federal legislative table.”

She continued that she thinks that Obama will make an effort to provide genetics research and rights funding when federal funding becomes available through the stimulus package.

Laws that may come into effect will probably deal with negativity and accuracy of genetic testing, according to Elster.

Elster led the roundtable discussion, part of the ABA’s midyear meeting, which included 13 other law professionals and a law student, a fraction of the 3000 in attendance for the weekend.

“The great thing about this group is it sort of represents a lot of different areas of law, all [of which] touch on health law,” Elster said.