Sunday, February 8, 2009

Self-Control Rather Than State-Control

This week I heard cries from the left and the right that there should be a law passed to regulate how many eggs may be implanted during IVF treatment. While I question the judgment of a single mother with six children persisting in IVF treatment, leading to eight more children, she has a right to do so.

Do we want to live in a country that tells couples how many children they may have, or try to have, at one time? Do we want government regulation that is motivated by an outlier case? I don't think so.

Liberty is a precious thing. It allows for personal choice with a few exceptions (e.g., murder is not a personal choice we accommodate, nor is assault or battery). Liberty means that people will sometimes make choices that society in general thinks are not good choices, and my sense is that society in general thinks that Nadya Suleman made a bad choice when she continued IVF treatment. But, the beauty of America is that she was FREE to do so.

Ms. Suleman may be ill, as some have suggested, and the clinic that administered her treatment should take a hard look at their screening process to see if perhaps their desire for a sale did not trump their concern for her best interest and that of her children. As the Hippocratic oath instructs, "never do harm to anyone." The clinic could have turned her away, and perhaps should have turned her away, but I do not think that the government should mandate or regulate how many eggs may be implanted in wombs.

I recognize that preserving liberty means that we must engage in self-control, rather than state-control, and so let us rise to that challenge. As Lord Acton said, "Liberty is the prevention of control by others. This requires self-control and, therefore, religious and spiritual influences; education, knowledge, well-being."

As for Ms. Suleman, I hope that the local community and particularly the local religious community rallies to help her as she takes personal responsibility for her actions.


Anonymous said...

I thought you might find the following attached comments from Dr. McClure, President of ASRM (one of the two leading infertility medical societies in this country) useful. It's not the patient in this case who should be questioned or limited in her discretion, but the physician(s) who did the IVF and implanted 8 embryos. It is totally outside of acceptable guidelines and placed the patient and all of her children at great risk. Accordingly, as it should be, the State Medical Board is looking at this case. Perhaps the State may eventually step in with legislation consistent with these guidelines.
Mark S. Polin, M.D.

ASRM reacts to latest news about California Octuplets

For immediate release, February 9, 2009

For more information, contact Sean Tipton at 202-863-2494 ~

Statement Attributable to R. Dale McClure, MD ~

President, American Society for Reproductive Medicine

ASRM's concerns about Ms. Suleman's octuplet pregnancy have been heightened since she announced in her Today Show interview that all of her children were conceived using IVF. We are pleased that the California Medical Board has announced they will be investigating this matter, and we are prepared to assist them in any way we can.

We too have contacted Ms. Suleman and the physician named in the interview in order to learn more about the circumstances leading to her octuplet pregnancy. Only when we obtain and evaluate such information will we be able to determine an appropriate course of action.

Physicians have known for many years the dangers of multiple pregnancy. ASRM and its affiliate, the Society for Assisted Reproductive Technology (SART), have worked steadily to formulate evidence-based guidelines for the number of embryos to transfer in assisted reproductive technology (ART) cycles.

We issued our first embryo transfer guidelines in 1996 and began to see a reduction in high-order multiple pregnancies the very next year. According to the CDC, in 1996 7% of fresh, non-donor ART cycles reaching embryo transfer and resulting in a live birth were triplets or more. By 2005, that number had fallen to only 2% of such cycles. This was achieved without hurting the pregnancy rates for our patients. In fact, during the same period, the success rate from fresh non-donor embryo transfers increased from 28% in 1996 to 34.3% in 2005.

Our guidelines provide the flexibility to give each patient treatment individualized to her needs, and her best chance to become pregnant without risking high-order multiple pregnancy. SART member clinics are committed to following those guidelines. However, it seems that the guidelines may not have been followed in Ms. Suleman's case.

Alison M. Kilmartin said...

Thank you for your comments, Mark. I will consider what you have suggested, but my initial reaction is that I do not think that the state should regulate the physicians either because that results in trickle down regulation on the couple.

David Hutchinson said...

I am not a regulation voluptuary, but it seems unremarkable for a state medical board to frown upon what happened in this case, and to have rules that forbid it. A state bar association can discipline lawyers for certain conduct, and I do not feel my home freedoms slipping away at the thought.

I am sympathetic to thin-edge-of the-wedge arguments when it comes to regulatory interference, but I cannot see the unwisdom in a professional association proscribing the doctor's actions in this case (and I take for granted we don't want to arbitrarily curtail the professional association's freedom to regulate its members). It seems the doctor failed this woman, who could have used different ministrations.

What makes this country great is not some unfettered personal right to burden society with the costs of our desires. That is anarchy, and you get there via freedom divorced from the costs of its consequences. While it may be edifying to see the response that comes from the community in terms of helping these many children to adulthood, there is and should be no requirement that society only react- at its cost- to bad decisions. It can, and should, also move to prevent them.

Whether it be in tort law or in criminal law or in the UCC, the law looks to locate responsibility for costs with the party most able to prevent those costs being incurred. In the instant case, the community (and that may ultimately include government in this case, which is funded by citizens)will bear the cost of the woman's desire and the doctor's apparent malpractice. I would like to see a logical realignment.

Kelly J. Bozanic said...

I think I also favor some paternalism in this case. As Dr. Polin pointed out, the issue is not Ms. Suleman's choice, but the physician's decision to proceed with the implantation thus putting both her and the babies at risk. I believe that where personal choice is likely to result in great harm, as in the IVF and implantation of eight embryos, a physician may properly be restricted from acting. This is not to say Ms. Suleman should be prevented from having as many children as she wants naturally or through multiple courses of IVF and implantation, but to implant so many embryos at once seems questionable. To draw a parallel, is a state's decision to disallow physician-assisted suicide not also an infringement on personal choice?

Perhaps it could be argued that since the cost of IVF is so high, Ms. Suleman - like many mothers using IVF - fear the implanted embryos won't "stick" and she will have to pay the costs again. By implanting as many as possible, the patient seems to have greater odds. Perhaps Dr. Polin can shed some light in this area, but my understanding was many physicians limit implantation to four embryos at a time. If that is the case, Ms. Suleman's situation is even more of a departure from the standard. And what do we know about medical malpractice? What would the reasonably prudent physician do . . .

Marie T. Reilly said...

"What makes this country great is not some unfettered personal right to burden society with the costs of our desires. That is anarchy, and you get there via freedom divorced from the costs of its consequences."

Mr. Hutchinson, I will gladly bear the cost of your freedom (within reason). Thank you for these sentences.

Alison M. Kilmartin said...

Hmm, I appear to be in the minority, but I am still not yet convinced.

First, I think this whole thing with Ms. Suleman is a tragedy. Her doctor never should have approved her for IVF when she had 6 kids and was on welfare. That was a bad judgment call by her doctor. I hope that the private community helps her and that child services steps in to help the children.

Second, anyone seeking IVF in Southern California should avoid using the services of this doctor. The market should drive him out of business.

Finally, I still do not think that this crazy circumstance should be used as a reason to regulate. Ms. Suleman's abuse of her personal right (and her doctor's complicity) should not result in limiting the personal rights of others.

If IVF is going to be regulated, I support state rather than federal regulation. As Mr. Hutchinson suggested, this could be accomplished via state medical boards.

David Hutchinson said...

Dean Reilly,

The collateral cost of my freedom is significantly less than it used to be (e.g. "Where are our lawn animals?").

I am of course gratified you find some value in reading what I write; the more so because the average law review editor would savage the constructions cited (e.g. pronoun error!; confusing!), forcing a clear but bloodless analog.

Marie T. Reilly said...

Alison, it seems you concede that the doctor should not have approved the IVF under these circumstances. The question remains whether the government should influence his choice as to whether to approve. Dr. Polin's comment suggests that the medical profession may provide some influence. I'm troubled though by the focus of the ASRM's concern which seems to focus exclusively on the health of the mother: "to give each patient treatment individualized to her needs, and her best chance to become pregnant without risking high-order multiple pregnancy."

I'm thinking about Williams v. Walker Thomas Furniture Co. that case poses to thousands of law students the question: Should the government regulate the Furniture Company (via the doctrine of unconscionability or otherwise)to influence its decision whether to approve Ms. Williams for a credit line to acquire consumer goods that the court famously thought she didn't need and couldn't afford?

It seems to me that the stakes in this IVF case are much higher than the risk of reposession of a toaster and a radio. While I normally look for a market solution, I see here that the affected parties -- the 8 children to be born and the six already born -- were not at the bargaining table when Ms. Suleman and her doctor were discussing terms.

Mrs. Williams at least had a chance to protect herself.