KEY POINTS■ Although clinicians are ethically required to treat all patients in need of medical attention, many providers already impose medical restrictions on access to infertility treatments. Some providers feel that their obligation ends at assessing medical fitness. Others, while acknowledging their responsibility to assess parental fitness, feel ill-prepared to do so.
■ Recommendations from the American Society of Reproductive Medicine (ASRM) include withholding services if there is evidence that the patients are unable to provide adequate care of the child. The ASRM further recommends that assessments of the evidence be made jointly by members of the fertility program involved and that the basis for making these determinations be set down in writing.
■ Current recommendations conclude that fertility services should not be denied to unmarried or homosexual persons or to those infected with HIV. Nevertheless, most fertility clinics are private organizations that can restrict access to services based on their own criteria. Approximately 97% of registered fertility clinics do not offer services to HIV-infected patients.
■ Perhaps the best approach is for each provider to decide on a case-by-case basis before offering infertility treatment which patients he or she considers good candidates and which patients should undergo more intensive psychological testing, counseling, or evaluation.
Infertility affects approximately 15% of American couples.
1 With advances in infertility technologies, more patients are seeking medical treatment in order to achieve pregnancy. As a result, large centers devoted solely to treating infertility have been established in the United States and around the world.
Most complex infertility treatments are provided by specialists who are often located in specialized centers. However, patients may access some forms of infertility treatment in small obstetric practices or even through physician practices in general fields, such as family medicine. Treatments range from ovulation induction with oral clomiphene (Clomid, Serophene) to donor treatments (such as artificial insemination, oocyte or embryo donation) to intracytoplasmic sperm injection, in vitro fertilization, gamete intrafallopian transfer, and zygote intrafallopian transfer.
THE ETHICAL DEBATE
The widespread availability of infertility treatments has led to an ethical debate on reproductive rights. The debate comprises cultural, legal, and professional aspects.
The current cultural philosophy in the United States is that childbearing is a right.2 Infertility is a medical condition, and therefore, patients feel that the medical community has an obligation to treat them with whatever means necessary to overcome their infertility. Based on these societal standards, some physicians feel that they are "playing God" if they deny these services to patients.3
From a legal standpoint, refusing to provide fertility services to patients can be viewed as patient abandonment or discrimination. Clinicians must be careful to avoid the perception of abandonment by providing timely notice that they wish to dissolve the patient-provider relationship. In terms of discrimination, the denial of services would need to be based on factual information and not on poorly substantiated suspicions, race, religion, ethnicity, stereotypes, or disabilities.4 Another potential legal implication centers on liability for the provider who aids in the conception of a child when the provider knows that child is at risk for harm.
In addition to considering the cultural and legal aspects of providing fertility services to patients, providers also must examine their professional obligations. Although clinicians are ethically required to treat all patients in need of medical attention, provider autonomy allows them to assert their own morals, values, and beliefs when offering services to patients. Many providers already impose medical restrictions on access to infertility treatments.5 These restrictions include denying certain services based on advanced maternal age or medical conditions that would significantly increase the risk of maternal and fetal morbidity and mortality.
Some providers feel that their obligation ends at assessing medical fitness. Others, while acknowledging their responsibility to assess parental fitness, feel ill-prepared to take on the task.6 Simply refusing to address the issue of parental fitness because doing so is difficult or subject to error does not make such refusal acceptable, however.6
CASE PRESENTATIONS
The potential consequences of providing infertility services to all patients without regard to parental fitness are illustrated in the following examples.
Parental fitness In the fall of 2008, a 2-month-old white female was taken to her regular pediatrician by her parents, who reported that the infant often appeared to stop breathing during feedings. Investigation revealed that the parents were feeding the baby while she was lying flat and thus causing her to choke. During the evaluation, the pediatrician noted a deformity of the baby's left femur as well as facial bruises and several lacerations on her head and neck. When the physician questioned the parents, the father admitted to harming the girl. The father was arrested, and the infant was admitted to the pediatric ICU. A complete nonaccidental trauma workup revealed bifrontal intraparenchymal hemorrhages, an interventricular hemorrhage, and subluxation of C4 and C5 with spinal cord impingement. The infant also had fractures in various stages of healing; several ribs, the clavicle, femur, tibia, radius, ulna, humerus, and multiple bones in the hands and feet were involved.
A review of the history revealed that both parents had some degree of mental retardation. An outside facility had aided in the infant's conception with maternal use of clomiphene. The mother was noncompliant with prenatal care and left against medical advice after a diagnosis of preterm labor. The infant was born at 31 weeks' gestation and spent 3.5 weeks in the hospital following delivery. Many members of the medical staff felt that the couple should have been screened more carefully for their ability to care for a child prior to being treated for infertility. Some members of the medical community felt that the clinician who provided the mother with infertility treatment should have been charged with legal liability for the child's neglect and abuse.
Too many babies Another example of the ethical concerns surrounding infertility treatments is the birth of octuplets in January 2009. A physician implanted six frozen embryos into the uterus of Nadya Suleman, a single, unemployed mother who already had six children ranging in age from 2 years to 7 years. Ultimately, Ms Suleman gave birth to eight babies after two of the embryos developed into twins. National publicity as well as public outcry followed the event. The public felt that the mother should not have been provided treatment to assist in the conception of these babies because she was unemployed and unable to provide for them financially. The public also felt that Ms Suleman did not have sufficient family support since she was unmarried and her mother was not supportive of the decision to have more children. In addition to these concerns, some members of the medical community felt that the physician violated the standard of care by implanting more than two embryos at a time. At the time of this writing, the California Medical Board has brought a complaint against the physician, although no hearing date has been set, and he has reportedly been expelled from the American Society of Reproductive Medicine (ASRM).
ETHICAL SELECTION FOR PARENTHOOD
These real-life scenarios highlight several ethical questions. Is procreation truly a right? If so, are providers ethically obligated to provide fertility services to all patients? Should patients be screened for fitness as parents when fertility treatments are sought? If so, who would do the screening and what criteria would be used? Are there certain psychological, social, or physical factors that would automatically disqualify a patient for fertility treatments? Should those needing medical assistance to achieve pregnancy be subjected to the same or similar standards as those pursuing adoption? Should legislation be enacted to restrict parenthood?
There are no easy answers to these questions. Few situations are as emotionally charged as the desire to have a child in the setting of infertility. As with most ethical dilemmas, the parties involved must choose the path that is appropriate for them while acknowledging the cultural, legal, and professional standards surrounding the issue. A summary of the current debate may offer some guidance.
PROCREATIVE RIGHTS
Although the US Constitution does not specifically address the right to bear children, numerous court cases provide evidence that procreation is deemed a right by the courts and is protected under the law through the 14th amendment.7-10 As with other rights granted and protected under the law, however, these rights can be restricted or denied under certain circumstances.
DENYING ACCESS TO FERTILITY SERVICES
The Ethics Committee of the ASRM (ECASRM) has issued a number of recommendations regarding the services that fertility programs may provide.4 The recommendations include withholding services if there is evidence that the patients are unable to provide adequate care of the child; the committee does not advocate home studies as part of the evidence-gathering process. Except when there is substantial evidence that the child will be exposed to significant harm, fertility programs are encouraged to provide services to all candidates who are medically qualified and to those with disabilities. The ASRM further recommends that assessments of the evidence be made jointly by members of the program and that the basis for making these determinations be set down in writing.
The ECASRM also identified grounds that would impose a moral duty on potential parents not to reproduce and on clinicians not to assist in reproduction.4 These include the risk of transmitting disease to unborn children, the inability or unwillingness to comply with prenatal care, the inability to provide for a child's well-being, the potential for physical or psychological harm to a child, and population overgrowth.
In addition to the ECASRM recommendations, Courtwright and Doron assert that providers should allow access to infertility services out of a sense of professional duty rather than a belief in undeniable procreative rights.5 Furthermore, providers need not feel they must use all available means no matter what the situation to fulfill this obligation. Reasons that justify denying parenthood include increased risk of fetal and maternal mortality and morbidity or greater likelihood of financial burden on the couple and society. Additionally, the authors cite the rights of others to have access to resources; the availability of other means to parenthood, such as adoption; and the negative potential of fertility assistance on society as a whole, by supporting nonbiological families, for example. Consideration should also be given to the uncertainty of treatment results and hesitation on the part of the provider to assist in creating these medical and social consequences.
Clearly, clinicians are medically obligated to provide services to patients who qualify medically. However, the previously noted medical, moral, and ethical exceptions must be considered.
ASSESSING PARENTAL FITNESS
The argument can be made that a third party who becomes involved in the conception of a child has some moral, ethical, and potentially legal responsibility for the outcome. There are clearly some circumstances in which denying fertility services is acceptable and even considered a moral obligation.
Humphrey, Humphrey, and Ainsworth-Smith advocate screening of patients desiring infertility treatments based on their marital relationship and social adjustment as well as their health status.11 The question of who should determine parental fitness remains unanswered, however. Unfortunately, most providers do not feel comfortable making this determination.
One solution is to require a home study. Considered the gold standard for determining parental fitness for adoptions, the home study is an in-depth evaluation of a person's social, psychological, and financial fitness to care for a child. Face-to-face interviews are conducted with each member of the household, and at least one visit to the home is conducted to assess safety. The process is appropriate to find a suitable home for a child who already exists, but what about a child who only potentially exists? The ECASRM guidelines do not require home studies for people seeking infertility treatments.12 The committee considers the process too time-consuming, too expensive, and completely unnecessary in most cases.
Advocates for the use of home studies assert that they objectify the process and avoid placing the burden for determination of fitness solely on the medical provider.6
Perhaps the best approach is for each provider to decide on a case-by-case basis, before offering infertility treatment, which patients he or she considers good candidates and which patients should undergo more intensive psychological testing, counseling, or evaluation.
PATIENTS WHO SHOULD NOT BE DENIED
While providers may find the task of discerning fitness for parenthood daunting, the recommendations regarding HIV and marital status are more definitive. The ECASRM concluded that fertility services should not be denied to unmarried or homosexual persons.12 Despite this recommendation, most fertility clinics are private organizations that can restrict access to services based on their own criteria.13
Sauer reports that despite ethical guidelines issued by the ASRM and the American College of Obstetricians and Gynecologists (ACOG) in support of providing fertility services for persons infected with HIV, approximately 97% of registered fertility clinics do not offer services to HIV-infected patients.14
REGULATION AND LEGISLATION
Despite the ECASRM recommendations, no mandates have emerged and the application of these recommendations remains solely at the discretion of individual fertility providers and programs.
In contrast, the United Kingdom passed the Human Fertilisation and Embryology Act of 1990, which states that no woman shall receive treatment without considering the welfare of the child who may be born as a result.15 Application of this viewpoint was noted, however, even prior to passage of this legislation. In 1988, a British court upheld an ethics committee decision to deny in vitro fertilization treatments to a woman with a criminal record of prostitution who had been turned down for adoption.16
Campbell asserts that children are "gifts," and as such, we have a moral duty to care for them.17 This includes not only would-be parents but also providers of fertility services and society, which must create a legislative framework within which reproductive medicine is practiced.17
CONCLUSION
In the United States, procreation and access to fertility
services are considered rights from both a legal and cultural perspective. The right to procreate has been established within the framework of the US Constitution, and infertility is viewed as a medical condition that providers are obligated to treat. Based on current ethical guidelines, providers who offer fertility services have a moral and professional obligation to ensure parental fitness to care for any children conceived through medical treatments. Recommendations call for screening of all patients desiring infertility treatment and for those whose fitness is deemed questionable to undergo more rigorous investigation.
Despite such attempts to account for the welfare of the child produced via infertility treatments and other ethical considerations, no mandate or legislation to that effect has emerged, and individual clinics may choose their own criteria. This process may include or exclude persons in an unjust manner. In fact, the lack of regulation may result in the production of offspring who ethically should not have been born. The opposite is true as well. Based on discriminatory criteria, some individuals may be denied access to fertility services and thus never bear the children who ethically and legally had the right to be born. In light of this, setting minimal regulatory or legal standards should be considered. Beyond that, the practice of reviewing the medical, psychological, emotional, and social situations of those seeking fertility assistance is not only ethical, it is the medical professional's duty. Doing so assures the best possible care to the patient, the unborn child, and society. JAAPA
Torry Cobb practices in the Department of Neurologic Surgery at the Marshfield Clinic, Marshfield, Wisconsin. The author has indicated no relationships to disclose relating to the content of this article.
REFERENCES
1. Nunley WC Jr. The slippery slopes of advanced reproductive technologies: Presidential address. Am J Obstet Gynecol. 2004;191(2):588-592.
2. Purdy L. Women's reproductive autonomy: medicalisation and beyond. J Med Ethics. 2006;
32(5):287-291.
3. Lieman HJ. Do I get to decide who should have a baby? Am Fam Physician. 2003:67(5):1139-1143.
4. Ethics Committee of the American Society for Reproductive Medicine. Child-rearing ability and the provision of fertility services. Fertil Steril. 2004;82(3):564-567.
5. Courtwright AM, Doron MW. Is restricting access to assisted reproductive technology an infringement of reproductive rights? Virtual Mentor. 2007;9(9):635-640.
6. Widdows H, MacCallum F. Disparities in parenting criteria: an exploration of the issues, focusing on adoption and embryo donation. J Med Ethics. 2002;28(3):139-142.
7. Griswold v Connecticut, 381 US 479 (1965).
8. Skinner v Oklahoma, 316 US 535 (1942).
9. Gerber v Hickman, 103 F Supp 2d 1214, 1216-1218 (ED Cal 2000).
10. State v Oakley, 629 NW2d 200 (Wis 2001).
11. Humphrey M, Humphrey H, Ainsworth-Smith I. Screening couples for parenthood by donor insemination. Soc Sci Med. 1991;32(3):273-278.
12. Ethics Committee of the American Society for Reproductive Medicine. Access to fertility treatment by gays, lesbians, and unmarried persons. Fertil Steril. 2006;86(5):1333-1335.
13. McGregor J, Dreifuss-Netter F. France and the United States: the legal and ethical differences in assisted reproductive technology (ART). Med Law. 2007;26:117-135.
14. Sauer MV. American physicians remain slow to embrace the reproductive needs of human immunodeficiency virus-infected patients. Fertil Steril. 2006;85(2):295-297.
15. Office of Public Sector Information. Human Fertilisation and Embryology Act. Chap 37 §26(2). http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900037_en_1.htm. Accessed May 18, 2010.
16. R v Ethical Committee of St Mary's Hospital (Manchester), ex p Harriot 1 FLR 512 (1988).
17. Campbell AV. Reproductive medicine: the ethical issues in the twenty-first century. Hum Fertil. 2002;5(1 suppl):S33-S36.