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

The rise of assisted reproductive technology like in vitro fertilization (“IVF”) as a method of human reproduction represents a remarkable medical achievement. Live births and success rates have increased dramatically in the past decade, so much so that many fertility clinics now “guarantee” a baby to clients who sign up. But with successes come inevitable downsides. Everyone knows that the price tag is steep, but given the demand, relatively few individuals are deterred. 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 intracytoplasmic sperm injection (“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 some clinics to implant more embryos than necessary and to recommend technologies that may increase births despite the fact that they increase defect rates.

Sadly, law and regulation lag far behind the 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.