In 2006 Carmen Bousada of Spain, now deceased, made headlines after becoming the world’s oldest mother at the age of sixty-six.  She gave birth to twins conceived through IVF.  Two years later, Rajo Devi of India took the record from her, giving birth to a baby girl at the age of 70.  While these cases represent the outer limits so far, the use of fertility treatment to enable women in their fifties and older, including those who are post-menopausal to give birth has stirred considerable controversy both in the U.S. and abroad.  For post-menopausal women and even for older women, successful treatment will typically require use of donated eggs, though some may seek to have children using their own cryopreserved embryos.  The growing availability of egg freezing may also open up the opportunity for more women to delay childbearing into their fifties and beyond. Hence, patients and clinics will likely continue to grapple with the issue of whether there should or should not be mandated age limits on assisted reproduction. This article will consider the legal and ethical issues raised by offering fertility treatment and assisted reproduction to older and post-menopausal women.

Legal Background

The U.S. has no formal regulation limiting the availability of infertility treatment and assisted reproduction based upon age.  Some states that require insurance companies to cover fertility services impose or allow maximum age limits on that coverage.  For example, Connecticut allows coverage to cease when the individual reaches age forty.   Otherwise, the law is largely silent on the issue of age and fertility services.  Nor does there appear to be any movement in favor of regulation on this issue in the U.S. at this time, though certainly when the media reports a birth by a woman of advanced age, calls for regulation tend to occur.  Although any legislation that restricts reproduction has the potential to raise constitutional issues, it is likely that a state would have sufficient justification to enact some age limits, if it chose to, without violating the Constitution.  Of course, any analysis of that issue would depend on the specific features of the law.

Ethical Issues:  Considering the Arguments

For the most part, the decision about offering fertility services to post-menopausal women rests with the individual physician or clinic.  Some clinics have adopted their own ethics guidelines to govern access to assisted reproduction for post-menopausal women.  The premier professional society for reproductive endocrinologists, the American Society of Reproductive Medicine (ASRM), has also weighed in on the matter.  In a July 2004 Ethics Committee opinion, ASRM concluded that the practice should be discouraged but not prohibited.  In reaching this conclusion, the Ethics Committee considered a number of arguments for and against the practice. In determining whether to offer treatment to women beyond menopause or a certain defined age, a number of factors need to be considered.

Arguments For Age Limits on Treatment

1. Health Risks

Pregnancy and childbirth pose greater risks for older women.  Studies have shown that medical complications occur with higher frequency as women age, and these complications can be serious.  They include increased risk of cardiac disease, hypertension, preeclampsia, diabetes and placental abruption.   Later childbearing (women over 50) also poses risks to the fetus, including low birth weight, preterm birth and fetal mortality.  The usual risks of IVF, such as multiple births, would also still apply.  Thus there may be sound medical reasons to refuse IVF to patients in this situation.

1. Social Factors and Child Well-Being

Beyond the potential for increased physical risks, having a child significantly later in life may pose difficulties for the child.  Older and post-menopausal women who conceive face a shorter life expectancy.  Statistically, those conceiving in their late sixties may be unlikely to see the child to adulthood.  Indeed, Ms. Bousada passed away when her twins were only two years old.  Children who lose parents may lack for financial or caretaking support and are at increased risk for stress, depression and drug use.

Even if the parent does live long enough to guide their child into adulthood, age-related health problems may place burdens on the parent that negatively impact the child.  Parenting imposes both physical and emotional demands, which older parents may have difficulty meeting.  Socially, both parents and their children may experience isolation and stigma from having significantly older parents.  Retirement may also reduce the parent’s income and her ability to provide for the child.

Arguments Against Age Limits on Treatment

1. Reproductive Freedom

The right to make choices about reproduction including when to start a family, is a deeply personal decision and one that should rest with the prospective parents absent compelling reasons to interfere.  Indeed, our Constitution recognizes the right to procreate as fundamental and deserving of special protection.  Although, as indicated previously, legal restrictions on fertility treatment based on age might well be permissible under the Constitution, they might nonetheless violate an important societal principle in favor of reproductive freedom.

1. Equality

Refusing fertility services to older and post-menopausal women arguably perpetuates a double standard: men have no age-based biological limit on reproduction.  They can, and have, throughout history, fathered children very late in life, generally without serious question.  Indeed, actor Tony Randall married a 25 year old when he was 75 and subsequently had two children.  Of course, when men have fathered children naturally, they have done so with women who were still in their childbearing years.  Thus, a child would likely have at least one parent alive until the child reached adulthood.  Nonetheless, we are making assumptions here.  While statistics say something about life expectancy, they do not necessarily indicate how long a particular person will live.  Moreover, we do not generally prohibit or deter individuals with a shortened life expectancy due to illness or family medical history from having children.

1. Social Factors and Child Well-Being

Allowing access to infertility treatment for older parents can help them fulfill a lifelong dream and a powerful need, which can benefit both the parents and their children.  Many parents today are older than in the past, and many grandparents are successfully raising grandchildren.  Hence concerns about the impact on children from having an older parent may be overblown.  While some older parents might experience a drop in income from retirement, others may have well-established careers and more financial security than younger parents.

            Conclusion

            Most people would likely prefer to complete their childbearing while they are younger, according to the natural cycle of reproduction.  But that option may not be available or desirable for everyone. While good reasons exist to exercise caution in providing fertility services to older or post-menopausal women, the decision to proceed does not lend itself to a bright-line rule.  The ASRM Ethics opinion recommends discouraging post-menopausal childbearing but does not prohibit it.  While some clinics may have informally adopted such a rule or a defined age limit, reflecting their physicians’ assessment of the ethical concerns and their comfort level with treating older patients, an individualized decision offers the benefit of allowing the physician and patient to reach a decision that is right for that particular patient.  Certainly, both physicians and patients should consider carefully whether childbearing at an older age is appropriate, taking into account first and foremost, the health risks to the patient.  In addition, both physicians and patients should consider the relevant psychosocial factors for the potential parent(s) and any children that may result.  These would include, at the least, consideration of the life expectancy of the potential parent and her partner; the financial support available for the child, including plans in anticipation of retirement or death before the child reaches adulthood; and the existence of other, “backup” caretakers.   Older patients seeking services should be offered counseling to address these and other issues that might bear on their decision.  Such comprehensive screening and counseling can lead to a decision that serves the welfare of both the patient and any potential children.

Deborah L. Forman is a Professor of Law at Whittier Law School and legal counsel to the International Fertility Law Group 

Copyright D. Forman, 2012