by Deborah L. Forman, Esq.
In January 2009, Nadya Suleman made headlines around the world by giving birth to octuplets, conceived by in vitro fertilization. While initially greeted with amazement, the birth of the octuplets quickly led to widespread condemnation, not just of Nadya Suleman (who was a single, unemployed mother of six at the time the octuplets were conceived), but also of her physician Dr. Michael Kamrava. Reports immediately following the birth stated that Dr. Kamrava had transferred six fresh embryos to Ms. Suleman, two of which split into twins, resulting in the birth of eight. Transferring six fresh embryos appeared on its face to be a clear violation of medical standards, including the guidelines established by the American Society of Reproductive Medicine, because of the greatly elevated risk of high-order multiple births. In fact, the reports regarding the number of 1embryos transferred were in error. Dr. Kamrava actually transferred an astonishing twelve embryos, the entire yield from Suleman’s oocyte retrieval cycle. In addition to the excessive number of embryos transferred, many questioned Dr. Kamrava’s willingness to provide any further fertility treatment to a woman who already had six children and questionable ability to support them.
Six months after the birth, the California Medical Board filed a complaint alleging that Kamrava’s treatment of Suleman, as well as of two other women, evidenced repeated negligence, gross negligence and incompetence. While the complaint alleged a variety of misconduct and errors by Dr. Kamrava, this article will focus only on the excessive embryo transfer.
Kamrava ultimately acknowledged he had made a mistake in deciding to transfer twelve embryos to Ms. Suleman. However, he attempted to defend the transfer by claiming that he believed that patient has the final word on the number of embryos transferred. According to the decision of the California Medical Board, Kamrava “did not think he could refuse to transfer less embryos than those to which N.S. [Suleman] would agree because he believed at the time that the ultimate decision should be largely driven by the patient’s wishes.” In addition, Kamrava asserted that Suleman had agreed to multifetal reduction in the event of a multiple pregnancy.
Kamrava’s arguments raise questions about the boundaries of the doctrine of informed consent. This legal rule provides that the ultimate decision whether to undergo or reject proposed medical treatment rests with the patient. The doctors’ legal duty is to provide sufficient information for the patient to make an intelligent decision for herself in deciding whether to undergo recommended treatment. However, the right to informed consent does not give the patient the right to insist on treatment that is against the medical standard of care. In claiming essentially that “the patient made me do it,” Kamrava went too far. The Board found that his transfer of an excessive number of embryos to Suleman was an extreme departure from the standard of care, constituting gross negligence.
This conclusion is consistent with policies regarding treatment that is futile or has a very poor prognosis. Futile treatment is defined as treatment that has only a miniscule chance of resulting in a live birth—defined by the American Society of Reproductive Medicine (ASRM) as a less than one percent chance; treatment with very poor prognosis carries odds of achieving a live birth of between one and five percent. An ASRM Ethics Committee Report provides that a physician is under no obligation to undertake or continue a treatment option he or she believes is futile, even if the patient desires the treatment. In deciding whether to proceed, the physician may consider not only the poor likelihood of success of the treatment, but also any physical and psychological risks to the patient.
In the case of excessive embryo transfers, while the treatment might lead to pregnancy and live birth, the grave risks to the patient and future offspring undoubtedly justify a physician in refusing such a transfer. Of course, the physician should also fully inform the patient of those risks before the egg retrieval and obtain consent to freeze or prevent further development of any excess embryos that are created. Nadya Suleman had consented to freezing embryos during prior cycles, but she apparently “insisted” on transferring all twelve fresh embryos created during the cycle that resulted in the birth of the octuplets.
As for Kamrava’s argument that Suleman promised to undergo multifetal reduction, it is unlikely that a patient can bind herself to a course of treatment before the condition potentially necessitating the treatment has even arisen. This would be particularly true where the treatment option involves termination of a pregnancy, as the woman’s right to decide whether to carry a fetus to term is constitutionally protected. While debate surrounds whether there are limits on a woman’s right to terminate a pregnancy, no precedent exists in this country for preventing a woman from carrying a fetus to term. Not surprisingly, the Board specifically rejected Kamrava’s claim that he could rely on Suleman’s promise to reduce any multiple pregnancy to justify the excessive transfer. The Board observed that patients come for fertility treatment to “create life and carry it into the world” and that multifetal reduction carries risks. Consequently, it refused to assign “even a scintilla of responsibility to a patient who becomes pregnant and then elects not to follow through with a procedure that may jeopardize her . . . prized objective.”
Kamrava’s transfer of excessive embryos to Nadya Suleman and another patient, who received seven embryos, along with other inappropriate treatment of a third patient, led the California Medical Board to revoke Dr. Kamrava’s license. The decision regarding how many embryos to transfer rests with both the physician and the patient, but as the Kamrava case makes clear, physicians have an obligation to refuse patient requests for inappropriately risky treatment that lies outside the standard of medical care. Nor can physicians rely on promises to reduce a multiple pregnancy to avoid the difficult decision about how many embryos to transfer.
Deborah L. Forman, Esq. is a Professor of Law at the Whittier Law School
Of Counsel, International Fertility Law Group and a member of The AFA Legal Advisory Group