Professional Self-Regulation and Shared-Risk Programs for in vitro Fertilization

See U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, American Society of Reproductive Medicine, Society for Assisted Reproductive Technology, and RESOLVE, 1995 Assisted Reproductive Technology Success Rates, National Summary and Fertility Clinic Reports, Volume I—Eastern United States (Washington, D.C.: U.S. Department of Health and Human Services, Dec. 1997): At 35 (hereafter 1995 Assisted Reproductive Technology Success Rates).

See id.

See Robertson J.A. , “The Case of the Switched Embryos,” Hastings Center Report, 25, no. 6 (1995): 13–19.

See Pear R. , “Fertility Clinics Face Crackdown,” New York Times, Oct. 26, 1992, at A15.

RESOLVE is a national infertility patient support group located in Somerville, Massachusetts.

See 1995 Assisted Reproductive Technology Success Rates, supra note 1.

See Fertility Clinic Success Rate and Laboratory Certification Act of 1992, Pub. L. No. 102–493, 106 Stat. § 314b, 42 U.S.C. § 263a.

Only Massachusetts and Maryland now require health insurers to cover in vitro fertilization (IVF).

Aetna, Inc., one of the U.S.'s biggest health insurers, which had been covering IVF since 1995, recently announced that it would eliminate coverage for IVF. See Freudenheim M. , “Aetna Is Reducing Fertility Benefits,” New York Times, Jan. 10, 1998, at A1.

See Wozencraft A. , “It's a Baby, or It's Your Money Back,” New York Times, Aug. 25, 1996, at 3.

See Joint Report of the Council on Ethical and Judicial Affairs and Council on Scientific Affairs, American Medical Association, “Issues of Ethical Conduct in Assisted Reproductive Technology” (Chicago: American Medical Association, CEJA/CSA Rpt.-A-96, 1996): At 5.

See National Advisory Board on Ethics in Reproduction, Statement, “Ethics of Shared Risk or Refund Programs for Funding In Vitro Fertilization (IVF) Cycles,” The NABER Report, 3 (1997): 1–4; Executive Council, Society for Assisted Reproductive Technology, Statement, “Outcome Based Fee Schedule for Assisted Reproductive Technology” (June 17, 1997) (on file with author); and American Society of Reproductive Medicine, “Statement on Shared Risk Plans” (Feb. 1998) (on file with author).

See Levy M.J. , “Fertility Center Describes Its Shared-Risk Program,” Journal of Women's Health Issues, 7, no. 3 (1997): 172–76; and Reproductive Health Associates, P.A., Fertility Cost Warranty Program (St. Paul: Reproductive Health Associates, July 15, 1996).

See Wozencraft , supra note 10; and Levy , supra note 13.

See Levy , supra note 13.

See Wozencraft , supra note 10.

See id.

See id.; and Levy , supra note 13.

See Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics (Chicago: American Medical Association, 1997): At 94–95.

Of course, the traditional contingent fee for legal services in personal-injury or other tort cases enables many clients to gain legal representation who would otherwise be unable to afford it. The client pays nothing unless or until the lawyer recovers money for him. IVF patients, by contrast, must come up with the funds to pay the initial shared-risk fee and then look to the provider for a refund if treatment fails. Nevertheless, commentators have long cited the insurance function of lawyers' contingent fees as one of their advantages over non-contingent fees, and in this respect the analogy to IVF shared-risk plans is a good one, despite the difference in out-of-pocket payment. See, for example, Schwartz M.L. Mitchell D.J.B. , “An Economic Analysis of the Contingent Fee in Personal Injury Litigation,” Stanford Law Review, 22 (1970): 1125–62. Moreover, personal-injury lawyers are permitted to charge contingent fees even to clients who can afford to pay them on some other basis, and business clients are increasingly hiring lawyers on a contingent-fee basis to conduct both business litigation and transactional work. See Hertzberg D. Steward J.B. , “Contingency Legal Fee for Merger Breaks Ground,” Wall Street Journal, Oct. 24, 1986, at 31; and Orey M. , “Good News, Bad News,” American Lawyer, 13, no. 6, Supp. (1991): 6, 57–58 (noting that some corporations now retain lawyers to defend them in civil suits under a “defense contingent fee” arrangement, which pays counsel a premium if less than a specified amount is recovered for the client, but requires a fee discount if the recovery is greater than the specified amount). Obviously, the contingent fee is not functioning in these situations to provide access to legal services for parties who could not otherwise afford them.

This assumes that providers have sufficient funds to pay all required funds to unsuccessful patients. If shared-risk plans grew in size and numbers and some providers, due to miscalculation, were not able to make the promised refunds, it is likely that regulation to assure sufficient reserves to cover refunds would be forthcoming.

See American Bar Association, Model Rules of Professional Conduct, Rule 1.5(d)(1) (as amended through 1997). The same rule prohibits contingent fees for representing a defendant in a criminal case. For discussion of the varying rationales that support this prohibition, and an argument that the ban should be relaxed, see Karlen P.S. , “Contingent Fees and Criminal Cases,” Columbia Law Review, 93 (1993): 595–638.

Report Joint , supra note 11.

Council on Ethical and Judicial Affairs, supra note 19.

See Wolfram C. , Modern Legal Ethics (St. Paul: West, 1986): At 533 nn.51 & 53 (citing cases).

See id.

See, for example, Clermont K.M. Currivan J.D. , “Improving on the Contingent Fee,” Cornell Law Review, 63 (1978): 529–639.

See Wozencraft , supra note 10; and Report Joint , supra note 11.

See Levy , supra note 13.

See Pear , supra note 4.

We consulted materials provided by the Pacific Fertility Center, San Francisco, California, the Shady Grove Fertility Center, Shady Grove, Maryland, and Reproductive Health Associates, St. Paul, Minnesota.

See Wozencraft , supra note 10.

See id.

See Levy , supra note 13.

Another concern occasionally voiced about shared-risk programs is the restriction placed by some programs on patient choice, if one is to qualify for risk-of-failure insurance. Some programs, for example, require that all frozen embryos from a cycle be used before the next cycle is initiated. At least one program requires that some of a patient's eggs be fertilized by intracytoplasmic sperm injection (ICSI) at the discretion of the embryologist. But it is not clear that such practices are against a patients' interest, nor that they are not freely chosen by patients rationally weighing the advantages of this type of insurance. In any event, a particular restriction, such as the use of ICSI when a patient otherwise objects, could be prohibited without prohibiting shared-risk programs. Indeed, the National Advisory Board on the Ethics of Reproduction report on shared-risk, which discusses this issue as one of four main ethical concerns raised by these programs, makes no recommendation, other than disclosure that such restrictions exist. See National Advisory Board on the Ethics of Reproduction Report, supra note 12, at 3.

See Levy , supra note 13.

Personal communication with Michael Feinman, Pacific Fertility Center, San Francisco, California (Feb. 13, 1997) (on file with author).

See Reproductive Health Associates, supra note 13.

Personal communication with author (Feb. 13, 1997) (on file with author).

See Jones H. , “Twins or More,” Fertility and Sterility, 63 (1995): 701–02.

See Human Fertilisation and Embryology Act, 1990, ch. 37 (U.K.).

See Staessen C. , “Avoidance of Triplet Pregnancies by Elective Transfer of Two Good Quality Embryos,” Human Reproduction, 8 (1993): 1650–53; and Roest R. , “A Triplet Pregnancy After In Vitro Fertilization Is a Procedure-Related Complication that Should Be Prevented by Replacement of Two Embryos Only,” Fertility and Sterility, 61 (1997): 290–95.