Handling the Misalignment of Interests in Assisted Reproductive Technology Practices

Abstract

One of the major problems we see in the use of reproductive technology at this time is that there is very little regulation of embryo transfer practices that lead to multigestational pregnancies. While the FDA must approve assisted reproductive technology (ART) devices and drugs that stimulate ovulation, it has no jurisdiction over the practice of medicine, how these drugs and devices are used on the ground, often in off-label procedures. The only current regulation of these practices is at the state level in the form of tort suits and actions against practitioners’ licenses by medical boards and informally through professional society guidelines.

Tort suits are uncommon because reproductive technology is generally used by vulnerable couples, who consent to the practices that cause multiple gestation pregnancies. What suits have been brought are rarely reported and generally settle. Where couples fail to bring suit, the state guardian ad litem could intervene to bring a wrongful life suit on behalf of the resulting children, but these claims have little traction because a preterm baby may have medical problems but often does not have a life not worth living. The dangers to mothers also go unrecognized because of their consent to the procedure. State medical boards generally only act when they receive complaints, unlikely based on the alignment of interests of the target population, and, while professional societies have made strides in improving embryo transfer guidelines, they have little beyond symbolic means of enforcing their best practices.

The U.S. has a history of leaving health professionals a wide degree of autonomy to practice medicine. While it may be difficult to interfere in the relationship of individuals or couples and their relationship to their doctor, there is a strong population level dictate to intervene. This could be accomplished through federal legislation or b state action. Many sick babies are brought into the world through increased use of assisted reproductive technology and the lives of mothers are put at risk. We need to find a way to line up incentives to stop or significantly reduce the number of multiple infant births.