William & Mary Journal of Race, Gender, and Social Justice


On January 26, 2009, Nadya Suleman, dubbed Octomom by the media, delivered octuplets after using in vitro fertilization. The same day, Congressman Anthony Weiner of New York introduced the Family Building Act of 2009 in the United States House of Representatives—a federal mandate requiring insurers to provide coverage for in vitro fertilization. The octuplets are no longer headline news, but issues associated with in vitro fertilization are still newsworthy. In this paper I propose that Congress should take a serious look at the Family Building Act of 2009. After addressing some additional issues, Congress should pass legislation mandating that insurers provide coverage for in vitro fertilization. Such legislation will have the effect of reducing the number of multi-fetal pregnancies and preterm births, as well as the costs and risks associated with such pregnancies and births. Although in vitro fertilization is used to treat infertility, it has replaced one problem (the inability to procreate) with a more serious problem (multi-fetal pregnancies). This problem exists largely because the fertility industry is not regulated. While the American Society of Reproductive Medicine (ASRM)and the Society for Reproductive Technology (SART) have issued permissive industry guidelines, there is no serious consequence to the physician or clinic that ignores those guidelines. As in vitro fertilization is expensive and largely funded with out-of-pocket monies, patients and their physicians are inclined to transfer more than one embryo for implantation during each cycle of in vitro fertilization. They do so in order to increase the chances of a “successful” pregnancy and maximize a patient’s use of funds. As a result, women who undergo in vitro fertilization often have more than one baby at a time. Moreover, the only federal law that regulates the industry—the Fertility Clinic Success Rate and Certification Act—also encourages multiple embryo transfers by requiring physicians and clinics to report their pregnancy success rates each year. A successful pregnancy is one that results in a live birth—regardless of how many children. This encourages physicians to transfer multiple embryos to increase their chances of a successful pregnancy so that they can attract additional consumers. Because the human uterus is designed to carry only one baby at a time, multi-fetal pregnancies are risky and usually result in preterm babies. The children often have long-term health and other needs. This is a public health concern. The Family Building Act would help regulate the largely unregulated fertility industry. If passed, women and their physicians would be inclined to transfer fewer embryos for implantation during a cycle of in vitro fertilization because an unsuccessful pregnancy would not mean the loss of out-of-pocket dollars. A patient would be more willing to try again if insurance covered the procedure. Furthermore, physician reimbursement rates could be tied to the industry guidelines. A federal mandate requiring insurers to cover in vitro fertilization would strengthen the industry guidelines without a need for an additional regulatory industry. An insurance mandate will reduce the incidence of multi-fetal pregnancies, the largest problem associated with in vitro fertilization, and ultimately increase the incidence of healthy single-baby pregnancies.

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