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Professional Self-Regulation and Shared-Risk Programs for In Vitro Fertilization

Published online by Cambridge University Press:  01 January 2021

John A. Robertson  and
Theodore J. Schneyer
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Extract

In vitro fertilization (IVF) is now a well-established practice in the field of assisted reproduction. In 1995, over 41,000 IVF cycles were done in the United States, at a cost of more than $300 million. The overall success rate has risen to 22.8 deliveries per 100 egg-retrieval procedures (19.6 deliveries per initiated cycle). As the field has matured, the attention of policy-makers has shifted from questions about the ethical and legal status of human embryos to concerns about providing access and protecting consumers.

Three such concerns have emerged. One is the danger that IVF programs will disseminate misleading information about their success rates in order to attract patients. This problem, however, may be alleviated by the publication in late 1997 of the first of annual national and clinic specific reports, based on randomly audited data, by the Centers for Disease Control and Prevention, the American Society of Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), and RESOLVE, pursuant to the federal 1992 Fertility Clinic Success Rate and Laboratory Certification Act.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 25 , Issue 4 , Winter 1997 , pp. 283 - 291
Copyright
Copyright © American Society of Law, Medicine and Ethics 1997

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References

See U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, American Society of Reproductive Medicine, Society for Assisted Reproductive Technology, and RESOLVE, 1995 Assisted Reproductive Technology Success Rates, National Summary and Fertility Clinic Reports, Volume I—Eastern United States (Washington, D.C.: U.S. Department of Health and Human Services, Dec. 1997): At 35 (hereafter 1995 Assisted Reproductive Technology Success Rates).Google Scholar
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Only Massachusetts and Maryland now require health insurers to cover in vitro fertilization (IVF).Google Scholar
Aetna, Inc., one of the U.S.'s biggest health insurers, which had been covering IVF since 1995, recently announced that it would eliminate coverage for IVF. See Freudenheim, M., “Aetna Is Reducing Fertility Benefits,” New York Times, Jan. 10, 1998, at A1.Google Scholar
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Of course, the traditional contingent fee for legal services in personal-injury or other tort cases enables many clients to gain legal representation who would otherwise be unable to afford it. The client pays nothing unless or until the lawyer recovers money for him. IVF patients, by contrast, must come up with the funds to pay the initial shared-risk fee and then look to the provider for a refund if treatment fails. Nevertheless, commentators have long cited the insurance function of lawyers' contingent fees as one of their advantages over non-contingent fees, and in this respect the analogy to IVF shared-risk plans is a good one, despite the difference in out-of-pocket payment. See, for example, Schwartz, M.L. Mitchell, D.J.B., “An Economic Analysis of the Contingent Fee in Personal Injury Litigation,” Stanford Law Review, 22 (1970): 1125–62. Moreover, personal-injury lawyers are permitted to charge contingent fees even to clients who can afford to pay them on some other basis, and business clients are increasingly hiring lawyers on a contingent-fee basis to conduct both business litigation and transactional work. See Hertzberg, D. Steward, J.B., “Contingency Legal Fee for Merger Breaks Ground,” Wall Street Journal, Oct. 24, 1986, at 31; and Orey, M., “Good News, Bad News,” American Lawyer, 13, no. 6, Supp. (1991): 6, 57–58 (noting that some corporations now retain lawyers to defend them in civil suits under a “defense contingent fee” arrangement, which pays counsel a premium if less than a specified amount is recovered for the client, but requires a fee discount if the recovery is greater than the specified amount). Obviously, the contingent fee is not functioning in these situations to provide access to legal services for parties who could not otherwise afford them.Google Scholar
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Another concern occasionally voiced about shared-risk programs is the restriction placed by some programs on patient choice, if one is to qualify for risk-of-failure insurance. Some programs, for example, require that all frozen embryos from a cycle be used before the next cycle is initiated. At least one program requires that some of a patient's eggs be fertilized by intracytoplasmic sperm injection (ICSI) at the discretion of the embryologist. But it is not clear that such practices are against a patients' interest, nor that they are not freely chosen by patients rationally weighing the advantages of this type of insurance. In any event, a particular restriction, such as the use of ICSI when a patient otherwise objects, could be prohibited without prohibiting shared-risk programs. Indeed, the National Advisory Board on the Ethics of Reproduction report on shared-risk, which discusses this issue as one of four main ethical concerns raised by these programs, makes no recommendation, other than disclosure that such restrictions exist. See National Advisory Board on the Ethics of Reproduction Report, supra note 12, at 3.Google Scholar
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