Baby dreams – risks in fertility services
Increasingly, people wanting to become parents are turning to fertility services. These include “social freezing” as a means to postpone conception, fertility treatments and/or pregnancy surrogacy. The treatments pose risks for the involved parties.
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A growing market
The ability to conceive without medical assistance gets harder as people age. This has led to rising demand for fertility treatments. These treatments can be expensive, and some employers offer them as benefits in an attempt to attract new and retain existing employees.1
As demand rises, investments in the industry are growing. Fertility treatments offer many benefits, but they also harbour numerous risks.
Risk for parents, donors and surrogate mothers
Many fertility procedures require intensive hormone treatments or surgery. As with all healthcare procedures, errors during medical intervention are possible. Providers of the treatments are under intense pressure to produce healthy children. However, the success rate for in vitro fertilization is still relatively low, for example at only around 29% in Europe.2 Further, chances for success decrease with parents’ age.
Modern fertility treatments may involve sperm donors, egg donors, and surrogate mothers. Most participants give freely consent, but some potential surrogate mothers may be under economic pressure to participate, particularly in developing countries3. They may undergo medical procedures and be exposed to negative physical consequences and mental stress, raising ethical concerns and potential L&H claims.
Beyond medical intervention, failures can occur elsewhere. The equipment used to store frozen sperm, eggs or embryos can malfunction, resulting in devastating consequences for those whose genetic material was stored for future use.4Such cases – typically leading to product liability or professional liability claims – diverge from risks commonly observed in the medical context.
Risks for children
Gender selection and genetic testing for diseases before implanting an embryo are common. Inherited or new genetic disease may nonetheless be missed, and is more likely as parents get older. Mishaps or mix-ups in medical clinics have also been documented, resulting in situations that can be traumatizing for parents and later, for their offspring.5
There have also been initial efforts to genetically modify children. While “designer baby” practices currently remain illegal, the range of conditions and predispositions that can be screened out legally around the world may expand going forward, opening new avenues for medical malpractice.6
Children born with the assistance of fertility treatment may also face health risks, including lower birth weights and need for intensive care.7
Regulatory gaps and claims
This suite of risks intersects with loose and fragmented regulation. Legal frameworks vary widely from country to country. These differences contribute to fertility tourism – prominently for surrogacy – and may generate ambiguity in the areas of medical malpractice and liability.8
So far there have been claims resulting from the failure of freezing tanks (a USD 15 million verdict),9children conceived from supposedly healthy sperm donors being born with a severe inherited disease,10and mixed-up embryos.11Given the rapid expansion of the market and scientific advances that will open new treatment opportunities, liability and L&H claims severity and frequency will likely increase.
Further Information
References
1 Weigel, G. et al., “Coverage and Use of Fertility Services in the U.S.,” KFF, 15 September 2020; “Employers prioritize family-friendly benefits,” WTW Survey Report, 3 June 2020.
2 Passet-Wittig, J. and Bujard, M., “Chapter 26: Medically assisted reproduction in developed countries: Overview and societal challenges,” in Research Handbook on the Sociology of the Family, Edward Elgar Publishing, 2021.
3 “Making babies, pushing boundaries: the great Greek fertility market,” Balkan Insight, 9 July 2021.
4 “The fertility industry is poorly regulated – and would-be parents can lose out on having children as a result,” The Conversation, 23 August 2021.
5 “California couple sue clinic for alleged IVF swap ‘horror’,” BBC News, 9 November 2021.
6 Cyranoski, D., “What CRISPR-baby prison sentences mean for research,” Nature news, 3 January 2020.
7 Passet-Wittig, J., and M. Bujard, “Chapter 26: Medically assisted reproduction in developed countries: Overview and societal challenges,” in Research Handbook on the Sociology of the Family, Edward Elgar Publishing, 2021; Scherrer, U. et al., “Systemic and Pulmonary Vascular Dysfunction in Children Conceived by Assisted Reproductive Technologies”, Circulation 125 (1890–1896), 2012.
8 Darnovsky, M., and D. Beeson, “Global surrogacy practices,” ISS Working Paper Series / General Series 601 (1–54), 2014; Erasmus University Repository: Global surrogacy practices (eur.nl); “The fertility industry is poorly regulated – and would-be parents can lose out on having children as a result,” The Conversation, 23 August 2021; “The Wild West of Fertility Clinics,” The Regulatory Review, 10 August 2021.
9 “Five fertility clinic patients awarded $15m after failure of freezing tank,” The Guardian, 12 June 2021.
10 “Sperm donation is largely unregulated, but that could soon change as lawsuits multiply,” The Conversation, 18 January 2022.
11 “California fertility clinic sued for mixing up embryos,” Reuters, 10 November 2021.