I. Introduction
Few familiar with the
story of Nadya Suleman—a single, low-income, California mother of six who
recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do
not instinctively react with outrage.[1]
Fourteen children (or even one) are a daunting number under the best of
conditions, and the conditions surrounding the Suleman births are far from
ideal. Yet, as the old saying goes, “hard
facts make bad law,” and Suleman, dubbed “the Octomom” by the media,
exemplifies the truth of this adage.
Suleman’s hard facts
have led not only to bad regulatory reform proposals, but also to public fury
and social hysteria. Critics have heaped
both fascination and scorn on Suleman, and legislators, policymakers, and
others have called for a variety of new restrictions on the use of assisted
reproductive technologies (ARTs) in response to the Octomom controversy.[2]
The most recent and
thoughtful of these proposals is from Naomi Cahn and Jennifer Collins, who
advocate a variety of ART-related reforms, including record-keeping
requirements, limits on the number of embryos that can be transferred during
any single IVF cycle, informed consent rules, and insurance coverage
regulation.[3]
Not surprisingly, given the high quality and inventiveness of prior work
from each of these authors, the Cahn and Collins framework for ART governance
has much to recommend it.
I take issue, however, with the Cahn and Collins embryo-transfer limit proposal and argue in this response that such a limit would produce fewer benefits and higher costs than Cahn and Collins assume. Moreover, if the fertility industry is to be subjected to greater oversight, such oversight should stem from a balancing of what is to be gained and lost in the process, rather than through a hasty response to a sad and disturbing—but aberrant—case.
