In Vitro Fertilization and the Law: How Legal and Regulatory Neglect Compromised a Medical Breakthrough

33 Pages Posted: 21 Sep 2014 Last revised: 23 Oct 2015

See all articles by Steve Calandrillo

Steve Calandrillo

University of Washington - School of Law

Chryssa V. Deliganis

Harvard Law School (1998), J.D.; University of California Berkelely (1994), A.B.

Date Written: September 19, 2014

Abstract

The rise of assisted reproductive technology like in vitro fertilization (IVF) as a method of human reproduction represents a remarkable medical achievement. It has allowed millions of infertile and same-sex couples to have children who were previously only the subject of their unrequited dreams. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics “guarantee” a baby to clients who sign up. But with success comes inevitable downsides. Everyone knows that the price tag is steep, but given the demand, that obstacle seems to deter relatively few determined individuals. More insidious are the increased birth defect risks associated with reproductive technologies. For some time it was assumed that these risks were due to the fact that individuals attempting IVF were older and possessed greater risk factors themselves. Now, however, recent research is showing that it may be IVF itself, and in particular the dramatic rise of a new technique called ICSI, that is responsible for negative outcomes. IVF providers face little incentive to impress these risks on their customers, and operate in a largely unregulated environment in which cash is king and informed consent is optional. The incentive to report high live birth rates dictated by the profit motive pushes clinics to implant more embryos than necessary, and recommend technologies that may increase births despite the fact that they increase defect rates.

Sadly, law and regulation lag far behind the incredible technology in this arena. While some industry groups have promulgated responsible guidelines for appropriate use of reproductive technology, they come with no viable enforcement or disciplinary mechanisms. Law’s absence has contributed to a “wild west” mentality in some fertility clinics, where anything goes if it will make money. It is past time that the law and medical regulators become involved in assessing the rapidly growing reproductive technologies available today in order to preserve their benefits while mitigating the risks that are largely unknown or ignored by most patients.

Keywords: Assisted Reproductive Technology, ART, in vitro fertilization, IVF, birth defects, intracytoplasmic sperm injection, ICSI, fertility treatments

Suggested Citation

Calandrillo, Steve and Deliganis, Chryssa V., In Vitro Fertilization and the Law: How Legal and Regulatory Neglect Compromised a Medical Breakthrough (September 19, 2014). Arizona Law Review, Vol. 57, No. 2, pp. 311-42 (2015); University of Washington School of Law Research Paper, No. 2014-30. Available at SSRN: https://ssrn.com/abstract=2498632

Steve Calandrillo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98195-3020
United States
206-685-2403 (Phone)

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=123

Chryssa V. Deliganis

Harvard Law School (1998), J.D. ( email )

5163 Massachusetts Ave
Cambridge, MA 02138
United States

University of California Berkelely (1994), A.B.

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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