Wednesday, October 14, 2009

When Messenger and Message Collide

By Sherry F. Colb

In today's column on FindLaw, I discuss a pending case before the Supreme Court raising the question whether a suspect who neither explicitly waives nor explicitly asserts his rights after receiving Miranda warnings may be interrogated.  An important part of my analysis turns on a major purpose behind the Miranda warnings -- mitigating the coerciveness of custody by reversing the presumption that answers to police questions are voluntary if a suspect does not assert his rights.  Among other things, I conclude that having a police officer announce rights that she hopes you will not assert may not be an especially effective mechanism for transmitting information.  In this post, I want to apply this lesson about conflicted messengers to the practice of fertility medicine.

The New York Times this past weekend ran a few articles about the great cost -- both financial and human -- associated with aggressive fertility treatments.  In brief, when couples go to a fertility clinic for either intrauterine insemination (or "IUI", a fancy name for artificial insemination in which sperm are introduced directly into a woman's uterus) or in vitro fertilization ("IVF"), they are typically so desperate to maximize the odds of a pregnancy that they undervalue the risks associated with carrying twins and other multiples.  As a result, couples request the transfer of several embryos rather than just one, a move that substantially increases both the odds of a pregnancy and, unfortunately, the odds that if there is a pregnancy, it will include more than one fetus.  With multiple pregnancies comes increased chances of complications for both mother and babies, including but not limited to prematurity (and associated ailments and disabilities).

The Times articles tell of tragic situations in which families found themselves, in which they (or their insurers) had to spend hundreds of thousands of dollars in treating premature infants and in providing special education to the resulting special needs children.  Other families faced pregnancies in which a doctor recommended reduction (another word for termination of some of the embryos or fetuses), but they chose not to follow the advice (and ultimately had to bury several of their babies).

Experts evidently attribute about a billion dollars a year in medical expenses each year to the collateral damage caused by fertility medicine.  If doctors transferred one embryo at a time, the figure would not be nearly this high.

One alternative, of course, would be to take the decision out of the hands of patients.  As I discussed in an earlier post in connection with organ donation, we could decide as a society that people should not be allowed to take steps (such as insisting on their own intact burial) that deprive others of what is rightly theirs.  But many people would find this approach offensive to their libertarian instincts -- if X wants to implant four embryos and has the money to pay for it, the argument goes, X should be able to make that choice.  Doctors, however, have said that patients seem unable to hear the real risks associated with multiple pregnancy and instead hear "Wow!  I could have 2 kids at once and have an immediate pair of children after waiting all these years for one!"

Why do parents not hear the part of the message that focuses on the risks?  Perhaps the problem is with the messenger.  The doctor who tells a patient that multiple embryo transfer carries risks is the same doctor who gets more business for his fertility practice if he can advertise that IVF or IUI success rates are very high (e.g., 50% per trial) than if he advertises that they are lower (e.g., 20% per trial).  Given competition for fertility business -- an extremely lucrative branch of medicine -- it pays for the doctor to convey the risk message in the way that television commercials quietly convey the risks of drugs that they advertise.  If the patient decides to go ahead with multiple transfer, then the patient is more likely to become pregnant than she is to suffer the untoward consequences of multiple embryo transfer (though the odds are nonetheless significant and the consequences potentially catastrophic).

This is a bit like the police officer delivering Miranda warnings.  On the one hand, the officer has a duty to convey to the suspect the fact that she may remain silent and that if she decides to answer questions, there may be serious consequences at her later trial.  On the other hand, the officer is naturally hoping that the suspect will take her chances and answer questions, and even the most ethical police officer cannot help but subtly undermine his own message.  In the case of police, the solution may be a third party giving the warnings, although the Supreme Court will not require this any time soon.  For medical doctors, whose financial interests side strongly with multiple embryo transfer, it may be easier -- in the interests of health care reform -- to require a neutral third party to tell patients precisely what tragedies they could face if they transfer more than one embryo at a time.  A Miranda warning for patients may be just what the doctor ordered (or would have, if she were not conflicted).

11 comments:

egarber said...

A couple of questions:

1. Should we assume that in-vitro is protected under current privacy precedent on even terms with the right to end a pregnancy?

2. If (1) is yes (even if only inferred), when would a medical miranda warning become an "undue burden" for a woman?

egarber said...

Here's another oddball question by means of analogy (referring to your Findlaw piece):

Suppose I'm on the stand in a criminal trial, but I fail to personally acknowledge that I'm under oath. If I then lie, is that still (potentially) perjury?

Am I presumed to not be under oath until I acknowledge it?

(Please forgive the lack of legal expertise in my hypotheticals).

egarber said...

On my last question, I'm guessing that failure to acknowledge equates with refusal, which could lead to contempt? So the analogy doesn't work. Oh well :)

egarber said...

While I'm asking clumsy questions, let me try one more:

Is there a separate constitutional protection -- i.e., another Miranda type warning -- before someone testifies in his own case? Or is Miranda all you get?

Sherry F. Colb said...

Hi egarber. Sorry for taking a while to answer your queries.

First, whether in vitro is protected under a right of privacy or not is an open question. The right to procreate is protected, like the right not to procreate (by means of contraception or abortion). IVF might be viewed as simply an extension of the right to procreate (which, like the right to contraception and abortion, require the use of other people and products). OTOH, it could be viewed as a very expensive and risky form of procreation that therefore justifies restrictions or even prohibitions (much as surrogacy arrangements and embryo donations are not viewed as protected processes).

If IVF is protected, Miranda warnings would not be considered an undue burden, because informed consent is understood to be an essential part of autonomy in pursuing medical options. Indeed, in the abortion context, far more intrusive warnings (that have more to do with ethics than with medical risks to the patient) have been approved. The IVF warning, by contrast, would present information about the medical risks of the procedure and therefore should not be at all controversial, at least as a constitutional matter.

If you are on trial for a crime, your version of the Miranda protection is that the prosecution may not call you to testify at all (even though you obviously have relevant information to offer, in virtually every case). That is, you are presumed to have asserted your right not to answer questions. If you choose to take the stand (e.g., you have your attorney call you as a witness), you thereby waive your Fifth Amendment protection with respect to the content of your testimony (and thus any cross-examination that is within the scope of direct).

More protectively than police interrogation, then, the overall structure of the criminal trial assumes that the defendant will not testify and does not even allow the prosecution to try to get the defendant to testify. The prosecution is also prohibited from mentioning to the jury the defendant's failure to testify (e.g., "if he's so innocent, why doesn't he say so?").

egarber said...

Sherry, thanks so much for the thoughtful (and thorough) comments. And of course, no apologies necessary for delay, etc. -- half of my questions are misfires anyway! :)

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Paul Scott said...

I think another issue is directly related to cost. In France, for example, where IVF is simply covered as part of their single payer system, IVF is done one embryo at a time. In the US, where IVF is elective, out-of-pocket for the couples and individuals seeking it, it is not surprising that there is a very high focus on success rate. Someone may not be able to afford to try several times, one implantation at a time.

Sadly, the disappointing Obama will be doing nothing to deal with this very real and very expensive issue.

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