Michele Goodwin, a View from the Cradle: Tort Law and the Private Regulation of Assisted Reproduction

• Publication year: 2010

A VIEW FROM THE CRADLE: TORT LAW AND THE PRIVATE REGULATION OF ASSISTED REPRODUCTION

Michele Goodwin^*

INTRODUCTION ............................................................................................ 1041

I. AUTONOMY'S LIMITS ....................................................................... 1044

A. Infertility: That Nasty Beast ..................................................... 1045

B. The Mamas and the Papas ....................................................... 1047

II. THE HIDDEN COSTS OF REPRODUCTIVE AUTONOMY ....................... 1054

A. Reproductive Gamble: ART's High Failure Rate ..................... 1055

B. Reproductive Roulette: High Stakes and Medical Risks of

ART ........................................................................................... 1057

1. The Complications .............................................................. 1058

2. The Process ........................................................................ 1060

C. Class, Race, and Religion ......................................................... 1062

1. Religious Justifications ....................................................... 1063

2. Race: A Filtered View of ART ............................................ 1064

3. Class and the Suleman Debate ........................................... 1067

D. The Gender Story ...................................................................... 1069

III. PUBLIC AND PRIVATE LAW GAPS: WHY ART DESERVES GREATER

SCRUTINY . ........................................................................................ 1071

A. Success: Terminology Failures ................................................ 1071

B. Can the CDC Do Much When Congress Does So Little? ......... 1073

C. Private Law Gaps: Intra-familial Immunity Doctrine .............. 1074

1. Spouses ............................................................................... 1074

2. Children .............................................................................. 1076

IV. A PRIVATE LAW APPROACH TO REPRODUCTIVE REGULATION ........ 1079

A. The Function of Tort Law ......................................................... 1080

B. Immunity and Sufficiency ......................................................... 1082

1. Family Discipline Theory ................................................... 1083

2. Family Tranquility Theory ................................................. 1084

3. Fraud and Collusion Theory ............................................... 1085

4. Family Exchequer Theory .................................................. 1086

5. Scope and the Line-of-Duty Theory .................................... 1087

6. Adult Status ........................................................................ 1088

C. The Application of Tort Law to Assisted Reproduction Cases .. 1088

1. The Thornwell Approach .................................................... 1089

2. Continuation of Harm Theory ............................................ 1092

3. Derivative Tort Theory ....................................................... 1093 a. Pregnancy Misdiagnosis .............................................. 1095 b. Negligent Sterilizations ................................................ 1096

CONCLUSION ................................................................................................ 1099

INTRODUCTION

"And this," said the Director opening the door, "is the Fertilizing Room."¹

Nadya Suleman-mama non-grata-has become a celebrity of sorts; she is known now as the infamous "octo-mom" for giving birth to octuplets through a sophisticated medical procedure involving forty-six doctors and extensive medical treatments for her infants.²Birthing octuplets is incredibly rare, but concern over Suleman's pregnancy must be understood in context; high order multiple births are generally celebrated in the United States.³Typically, references to divine intervention, miracles, God, and religion attend multiple births, as in the cases of the McCaugheys, Masches, and Morrisons, to name but a few.⁴Setting Suleman's case apart for many is the fact that she is the indigent mother of six other children, three of whom receive government assistance for various disabilities.⁵

However, the dynamics of Suleman's case must not be examined in intellectual isolation. The frequency of large multiple births now dulls public excitement in anticipation of twins, triplets, and quadruplets. According to the Centers for Disease Control (CDC), the number of multiple births in the United

States has skyrocketed over the past twenty years.⁶Based on the empirical literature, it comes as little surprise to scholars that assisted reproductive technology (ART) is blamed for the "100-fold increase in the occurrence of multiple-infant births over the past two decades."⁷Yet, it would surprise the general public that the probability of a multiple birth is less than two percent in the general population; however, with fertility treatments it is over thirty percent more likely that a multiple birth will result.⁸Data for 2005 and 2006 (the latest available) record the highest numbers of multiple births ever documented.⁹

According to the U.S. Department of Health and Human Services, there were 143,625 live multiple births in 2006, composed of 137,085 twin births,

6,118 triplet births, 355 quadruplet births, and 67 quintuplet and other higher order births.¹⁰Rising numbers of multiple births are an international trend that threatens the health of both mothers and infants.¹¹With the rise in multiple births, government agencies in the United States and abroad report alarming rates of stillbirth, miscarriage, infant mortality, and perinatal mortality.¹²The increased use of ART is credited with stark increases in multiple births. In the United States, it is estimated that one percent of babies are born using reproductive technologies.¹³The trend in increased, high order, multiple births can be traced in the medical and public health literature, which indicates that the increase came in two distinct "reproductive waves." For example, previous scholarship notes the near doubling of high order births (quintuplets and above) between 1989 and 1998, which could appropriately be considered the first wave.¹⁴The relatively rapid increase in high order births continued into the next wave, which occurred from 1999 to the present. During this second wave, multiple birth families-such as the Gosselins, Morrisons, and Maches-and individual mothers-such as Nadya Suleman-captivated the public's attention.¹⁵

The Suleman case correctly exposes some harmful repercussions of maternal autonomy and choice, as well as the gaps in enforcement of ethical protocols within those medical communities practicing ART. However, most notably absent from the debate about the Suleman case and ART in general are the tort law implications. Is there nothing tort law has to say about the serious medical harms that befall ART babies and children? Tort law may in fact provide a desirable, muscular framework for addressing an area largely unplumbed by legal scholars and severely under-regulated by the government. This gap could be attributed to the conventional view that familial immunity should apply only to negligently and intentionally inflicted parental harms (thus narrowing the types of cases permissible within tort law), or the mistaken view that multiple births are generally safe and isolated.

This Article proposes a paradigm shift. It analyzes the viability of tort law to address the private and costly harms resulting from negligent application of ART. These harms include the intentional and negligent conception of children with significant disabilities. This Article articulates the need for a nuanced approach to tort law in the realm of child-parent conflict-an approach that shifts the social and economic burdens of infant and child harms to parents because they are best situated to avoid the risks of harm. This Article addresses a gap in socio-legal scholarship to unpack when, how, and why tort liability should apply to ART cases. It also anticipates the expanded application of tort theories in traditional intra-familial contexts.

Part I analyzes the rise in reproductive technologies, placing the expanded use of such treatments in the context of demands to aid infertile couples and individuals in producing offspring.¹⁶It articulates a distinction within the delicate ART landscape, observing that reproductive technologies present some serious health harms but also surely help facilitate some aspects of social justice by accommodating careers for women and expanding parental opportunities for gay men and women. Part II illuminates the hidden costs of ART, examining its less desirable features, which include multiple births, low birthweight babies, and fetal birth defects. Part III offers a critique of current federal policy, exposing its weaknesses and inefficiencies. Part IV presents the socio-legal thrust of the Article, arguing that ethical and legal problems emerging from ART illuminate not only physician-patient conflicts of interests but also parental-fetal and parental-child conflicts of interest. These conflicts extend beyond the metaphorical, resulting in serious illnesses and even death in some cases. Accordingly, Part IV considers the role and applicability of tort law to regulate the private spheres of reproduction. Part V concludes the Article by explaining that greater emphasis on the fiduciary responsibilities of physicians to their patients and parents to their children could reduce adverse health outcomes for ART patients and their babies.

I. AUTONOMY'S LIMITS

The CDC reports that the frequency of ART procedures in the United

States has more than doubled over the past decade, from 81,438 operations in

1998, to 142,435 in 2007.¹⁷These figures represent a dramatic increase in the utilization of ART but fail to account for some reproductive treatments that involve aggressive...