The Contraception Mandate

Caroline Mala Corbin*

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Health care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.[1] Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.[2] This requirement—often called the "contraception mandate"—has generated a huge outcry, especially from the U.S. Catholic hierarchy.[3] Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths—such as schools, hospitals, and social services providers—are not.[4] It is the lack of an exemption for the latter organizations that has generated protests.

Why We Should Ignore the "Octomom"

Kimberly D. Krawiec[*]

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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.

Who Decides What Number of Children is "Right"?

June Carbone[*]

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I agree with Professors Cahn and Collins that “eight is enough.”[1]  I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more.  I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care.  I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care.  But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole.

I therefore applaud Professors Cahn and Collins for leading with the question, “Should we regulate?” and for framing their proposals in the context of a principled distinction between regulations of the type that tend to be federally regulated in other contexts (how many embryos to implant in a single in vitro procedure, for example) and personal decisions better left to individual autonomy (such as whether a single mother ought to have more children).  I fear, however, that although the distinction they draw is principled and in many ways persuasive, it is a line unlikely to stick and unlikely to fully address the ethical framework for reproductive technologies if in fact it does take hold.

My concerns do not proceed from any reflexive libertarianism.  I do not reject government regulations per se, nor do I believe that the market, through the magic of the unseen hand, will necessarily correct misguided decisions to implant six embryos in an unemployed thirty-two-year old.  Instead, I question the framework Cahn and Collins develop for determining when and what type of regulation is appropriate.  I argue for a dynamic theory of regulation, informed by the concept of evolutionary economics, that would ask not just what kind of regulations are needed, but also how regulatory implementation is likely to affect who becomes a patient, what kinds of doctors are likely to provide the services they seek, and where and when medical treatment is likely to occur.  This analysis is dynamic—and evolutionary—not in a biological sense, but in the sense that it anticipates how change in one arena, such as the expansion of insurance coverage, might affect another area, such as the number of embryos likely to be implanted or the need to regulate issues not of concern in today’s fertility practices.  In short, I am more concerned about whether fertility clinics locate in Detroit or Windsor, whether President Obama or a Georgia governor appoints the regulators, and whether Ms. Suleman can afford in vitro fertilization at all than I am with having a government official stop the next doctor willing to implant too many embryos.

Eight Is Enough

Naomi R. Cahn & Jennifer M. Collins[*]

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Introduction

On January 26, 2009, the nation’s second set of live-born octuplets was delivered at a California hospital.[1]  The public fascination with this unusual event quickly turned ugly when the media revealed that the new mother was thirty-three-year-old Nadya Suleman, a single, unemployed woman already caring for six other children under the age of eight.  As Ellen Goodman of the Boston Globe described it, upon discovery of Suleman’s identity, the mood of the country went “from ‘Gee whiz’ to ‘Are you kidding?’” in a matter of days.[2]

The reaction to Nadya Suleman’s new family stands in stark contrast to the enthusiastic reception for many other families with high-order multiples.  For example, the cable show Jon & Kate Plus 8, which features a family with a set of sextuplets and a set of twins, is currently one of cable television’s highest-rated shows.[3]  The McCaughey septuplets, born in 1997, are similarly famous: for example, they celebrate their birthdays each year with Dateline reporter Ann Curry.[4]  Indeed, public fascination with high-birth families dates back at least to the famous Dionne quintuplets of the 1930s, who were treated as a tourist attraction by the Canadian government and who were visited by more than three million people over a ten-year span.[5]