Catching Up

Sarah V. at Good Enough Mum asked me about the couple in Australia who are suing their doctor over a 2-embryo IVF transfer.  Julie at A Little Pregnant raised the issue a few days ago, and she has good links to news reports about the case.  I confess I've only seen snippets about it on-line myself.

I guess I don't have any strong opinion one way or the other.  I'm not that upset by the parents' legal claims about their marital relationship, parenting stress, or attachment -- because if they want to get the doctors to pay for the clinic's presumed mistake, they have to show how the mistake hurt them.  And honestly, there's ample academic research supporting the claim that raising multiple-birth children significantly stresses couples and creates a sub-optimal environment for infants and small children.

Remember I was going to summarize that research for you?  I ended up tossing it aside, because it made my head hurt.  I thought a lot of the summary conclusions were at least partially accurate, but I thought the methodologies and disciplinary assumptions were ... dubious, at best.  The thought of having to critique and summarize it all for you made me run screaming from the room.

Here, quick summary before I'm outta here: Mothers of multiple-birth children show higher rates of post-partum depression than mothers of singletons.  Mothers of multiple-birth children are slower to attach to their infants, and they learn their infants' cues and personalities at slower rates than parents of singletons.  Multiple-birth children are delayed in language acquisition by, on average, 6 to 12 months, even adjusting for prematurity and other medical delays.  The early cognitive deficits that result from the suboptimal environment of a multiple-birth environment persist at least through age 8.  Raising multiple infants places enormous stresses, physical and psychological, on parents.  Parents of higher-order multiples in particular have higher divorce rates than other parents.  Don't have multiple-birth children if you can help it, at all.

Oh, and before you go all selective-reduction on me, you should know that 99% of that research was done using twin families as the subjects.  Unless you're going to pull a Mark Evans, MD, and argue that we should maybe reduce twin pregnancies, too.  (Hey, the man may be a tool who gives his patients incomplete statistical data, but at least he's consistent in his promotion of the technique he pioneered.)

The point is, the parents are pissed off that their clinic didn't follow their request, and now they're using whatever material is at hand to get compensation for the mistake.  That part, in and of itself, doesn't bother me too terribly much.  Lawyers, help me out: this is how personal-damages lawsuits work, no?

As to whether I think the clinic should be sued -- eh, I don't know.  Maybe I've spent too much time in the infertility-haunted fever dreams of Dick Wolf's imagination, but the reproductive endocrinologist didn't use his own sperm to create the transfered embryos.  The doctor didn't take the women's excess embryos and transfer them into half a dozen other women, most of whom had the incredible luck to conceive and birth live children.  No one was murdered on the morning of the transfer as someone else tried to steal back embryos conceived with an ex-spouse.

The clinic simply failed to communicate properly about numbers on the morning of the transfer.

Wait.  You know, I actually do think that's a real problem.  I think, based on what I know about IVF, that the contract ("we agree to transfer up to two") doesn't protect the clinic from legal action, because every person I've known who's done IVF hasn't made the final decision about the numbers until the morning of transfer.

I want the clinics to listen to the patients' wishes on that numbers thing.  It matters.

Sure, a single embryo could have split anyway.  The parents could still have ended up with twins, or even monozygotic triplets: it does happen.  [Imagine the feelings of the couple who transfered two embryos and ended up with five.]  But that's not the point.  The point is, these parents explicitly told the clinic they wanted only one embryo transfered, and the clinic screwed up.  I think I'd be angry, too.  Although I'd also probably be too sleep-deprived to sue.

If I were the judge, I'd probably impose some fine, but nothing so great as that requested by the plaintiffs.  But who knows, really.

What do you think?  Feel free to link to your comment at Julie's, or any other website, if you've already played this game.

[Have no opinion one way or the other?  Help me track down all of Law & Order's other infertility-related stories.  Because damn, I know there's been more than three.]

Comments

[Henny Penny]

Well I won't be an attorney for a few more weeks and certainly have never gotten the opportunity to work on this kind of problem... BUT there is a long standing proposition in American contract law that you can't sue for the birth of a healthy baby you didn't want. Comes from vasectomy cases if I remember 1L year. On the other hand, all kinds of legal traditions (especially in wills and estates) are being challenged by new fertility technology.

[Henny Penny]

Can't recover damamges for the birth of a healthy baby.

[Emma B]

I talked about this at some length on my own blog recently, if you forgive the self-promotion.

The clinic screwed up, there's no question. When I asked my mom about what her clinic would do in such a situation, she said they would absolutely offer the patient some sort of compensation, and have done so in the past when faced with other clinic errors. It doesn't erase all the difficulties of having twins, but no amount of money will.

If you aren't willing to trade even a slight possibility of multiples for having children, don't do infertility treatment, period. You can alleviate the risk, but you can't ever erase it entirely. What does it ultimately matter if it's from human error or if it's identical twins?

The real assholishness of the situation, to my mind, is the fact that they have sued the doctor and gone on the public record saying some rather nasty things about their children. How will the children feel when they someday discover that their birth was viewed by their mothers as a terrible, traumatic thing? That they were responsible for creating deep rifts in the parents' relationship? That the parents seriously considered giving one of them up for adoption?

Obviously, you've blogged before about your ambivalence about high-order multiples.
However, you've done it in a thoughtful way, which acknowledges the real difficulties without reference to your specific children. This couple's public statements have been quite different, and I suspect the children will find them difficult to read someday.

[swissmiss]

"Every person I've known who's done IVF hasn't made the final decision about the numbers until the morning of transfer." Really? My Swiss RE (where 2 is the max transfer number) wants the number at the beginning of the cycle and fills out the form for the lab at that time.

However, once, out of four attempts (one fresh IVF and three FETs) the morning of transfer the lab director said we know you signed up to transfer one but we have two really good looking ones here, would you like to transfer both or should we re-freeze one? Through me into a total tizzy - we stuck with our original decision of only one because we figured if we meant it then, when we had lots of time to hash it out, we probably still mean it in these stressful last five minutes. I can't imagine making that decision on the day of transfer. Talk about stress and suboptimal conditions for decision making...

I guess I've gotten all Swiss in my approach to IVF - they're very regulated over here compared to the US - because my first thought was that the clinic seriously needs a licensing committee to go through its procedures with a fine-toothed comb. What fools blow off and/or misunderstand a patient's wishes like that?

[Jody]

Swissmiss, I don't have extensive experience with IVFers, but most people I know tell stories like yours. They signed papers offering ranges and guidelines, but the final decision was made on the day of transfer, based on the quality of the embryos at that moment.

A general word: I used to get every single comment via e-mail. Of course, you all know I didn't respond to every single comment, because I Am Lame. But I knew they were there. And I EXPECTED to respond -- I just deleted 3500+ e-mails last week, when I acknowledged the impossibility of the task. But now? Typepad is eating about 1 comment in every 3. So if I'm completely oblivious and you've asked something directly or you're trying to get me to respond, uh, well, it might be because I don't always remember to open my own comment threads.

I Am A Very Bad Blogger. What else can I say?

[chris]

See, you're the first person to actually have an opinion I agree with on this subject and I suspect it's because you have multiples. I don't think that wanting to be compensated for "damages" in any way automatically means these parents don't love their children. It means a contract was broken and they want to be compensated. That's it. Sure, they sound like jerks. But that's beside the point.

I'm sure I could get all legal on you regarding this issue, but I'm just too tired. See? Twins. Not so easy. Still, well-loved.

[akeeyu]

I absolutely agree with you that many couples don't make a final decision about numbers until the day of transfer.

I also agree that the doctor (and/or his embryologist) made a mistake, or at least displayed poor communication skills.

I agree that they should be able to sue.

However, I think they're being jerks about it. They've stated, for the record, that they lost the ability to love, that they wished one of the embryos would "go away" during the pregnancy, bla bla bla.

By all means, sue, but do it in a way that doesn't state or imply that you don't love your children or you wish one of them had never been born.

Sam and I really wanted to have one child at a time, mostly because of the risks involved with multiples. We wanted this so much that we did elective single embryo transfers. This last cycle was The Last Cycle, and on the day of transfer, we had two blasts. Given my uterus's history of killing off embryos and given our previous 50% thaw rate, we decided to throw 'em both back in. What the hell.

Well, now I'm pregnant and there are definitely two in there. Most of the time when I think abou the logistics of gestating, birthing, and raising two at a time, I think "Oh, shit," but at the same time, I love them.

If somebody offered me $400,000 to declare in open court (even anonymously) that I couldn't love them, that I wished one of them had died, or that bearing them had completely ruined my life, I wouldn't do it. You don't do that to your children for money.

[mamacate]

Exactly what you said. I immediately saw the horrible stuff as legal maneuvering. Though I would probably think twice about the day when my kids read the old news clippings.

Clinics don't let you decide how many on the high side, because infertile women are crazy (I say this with full knowledge that I was a crazy person). I supported a friend who did DE in Ukraine and hung out on a yahoo group of women doing that, and they were letting women decide and many of them were putting back 4 or 5 high quality proven donor embryos. SCARY. I think it's typical that women *CAN* absolutely limit the number of embryos on the low side.

My twins were fresh IVF number 4. Because I'd failed with 2, 3 frozen, 4, and 4, they offered to put 5 back. I looked at the photo of the embryos (same grade as the time before), considered the med changes, and said no, 4 will do. I might be a member of triplet connection too had I agreed... (And I wouldn't have reduced because of the research you cite.)

[suszoz]

I discussed this on my blog too.
http://susoz.typepad.com/personal_political/2007/09/a-tale-of-two-e.html
It caused a big stir here in Australia and there was a nasty anti-lesbian tinge to the way it was reported and commented on in the press.
One thing that's different here is that, in a semi-nationalised health system, there is a limit of two embryos to IVF transfers nowadays anyway (I can't remember whether that would have been so at the time of their transfer, four years ago). In fact most IVF clinics are moving to a single-embryo transfer policy, as the impact on the public hospital system of so many multiple births from IVF has been unacceptably high, as well as the negative impact on physical and mental health of parents, especially mothers.

[Shannon]

Law and Order has some adoption doozies too.

I wish the couple well from what I know of it. But the poor kids. How would it feel to know that your parents sued the doctors for getting you concieved?

[Helen]

By all means, sue, but do it in a way that doesn't state or imply that you don't love your children or you wish one of them had never been born.

Yes, and the other thing was, I think they mentioned that they were suing for all those $$$ partly because they insisted on private education. In other words, to keep the kid /kids away from the rest of our unwashed brats. That's when my sympathy evaporated.

[julie]

It's funny, but I think I was less stressed overall after the twins were born than I was after Raisin's birth. They're only a year old, so it's too early to tell much about their development, I suppose, but they're hitting the important milestones within normal ranges. And nobody (that I know of) selectively reduces multiple pregnancies that come about "naturally," like mine. Does all that come into the research?

[Emmie (Better Make It A Double)]

That third to last point made my day - not because it changes anything, but because it sums it all up so damned well. Oh, and I'm with you on Clinton. I even have a valid passport to another country, so don't try me.

[Bridgett]

I really have no opinion one way or another about IVF or any of this, but I will say that the words "infertility haunted fever dreams of Dick Wolf" made me laugh out loud.

I can only think of two of those episodes, alas, no help there.