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Constitutional Rights and the Octuplets

by Professor Will Huhn on March 19, 2009

in Constitutional Law,Wilson Huhn

     On January 26, 2008, Nadya Suleman gave birth to eight children.  Ms. Suleman, as you are no doubt aware, is single and divorced, and already has six other children aged 2 to 7.  These eight newborn children were conceived by means of in vitro fertilization and all eight embryos were implanted into her uterus.  My wife and I have raised four children and like all parents we are aware of the challenges and responsibilities of parenthood.  The action of Ms. Suleman is at a minimum irresponsible, and the complicity of the fertility clinic that enabled her to do this is extremely troubling,   Under the Constitution, can anything be done about this situation, and can the government prevent these kinds of occurances in the future?

     To begin with, whether they are married or single, people have a constitutional right to have children.  In 1942 in the case of Skinner v. Oklahoma the Supreme Court ruled that the right of procreation is "one of the basic civil rights of man."  The contraception and abortion cases are simply aspects of the principal right to procreate.  Nor is the Court likely to say that the government may limit the number of children that a person or a couple may have.  Furthermore, I predict that the Court would find that people have a constitutional right to use assisted forms of procreation such as artificial insemination and in vitro fertilization to conceive children.

     This does not mean that the government has to make it easy for people to have children.  There is no constitutional right to health insurance or tax deductions, and the government could make it more expensive to have or raise children.  That would be a fairly blunt tool for addressing the actions of Ms. Suleman and her fertility doctor, though.  There are more targeted remedies.

     Although people have a constitutional right to have children, they do not have a constitutional right to neglect them.  If the time should come that Ms. Suleman is unable to properly care for her fourteen children the state may intervene, assume legal or physical custody, and if necessary terminate her parental rights. 

     Physicians are even more susceptible to government regulation.  When a physician performs a procedure that is not approved by a state licensing board he or she is subject to sanction – suspension or revocation of the medical license.  Furthermore, had there been complications for either the mother or the children, the fertility specialist responsible could face a civil suit in malpractice.  Neither the pregnant woman nor the unborn children can waive their right to sue a doctor whose negligence causes injury.  Finally, If a government agency such as NIH or a professional medical society such as ACOG were to issue a clinical practice guideline advising against the practice of implanting as many as eight embryos, it would not have the force of law, but it would give any physician pause – and it would strongly encourage hospitals and medical malpractice insurance companies to make sure that the physicians on staff at the hospitals or insured by the companies did not participate in these kinds of procedures.


Quidpro March 19, 2009 at 8:20 pm

Good analysis, Prof. Clearly we cannot legally prevent "Octomom" from bearing many children, but we can hold her to explicit standards in her rearing of her brood.

larry d. March 22, 2009 at 9:18 pm

That sounds even creepier, quidpro.

1L March 30, 2009 at 3:50 pm

While I agree that it is hard to argue against the notion that procreation is "one of the basic civil rights of man," I do not think that rule extends to the extreme cases of in vitro fertilization that we see here. I think that the state should follow the European countries who have tried to prevent against this problem and regulate how many eggs a woman may have implanted at one time (which relates to Professor Huhn's idea about regulating multiple birth pregnancies by raising the cost of pregnancies). An in vitro procedure costs upwards of $10,000 and so some women choose to have as many eggs implanted as possible in hopes that one will survive. In Nadya's case, I have read sources which claim she had more than 8 eggs implanted but only 8 survived. California is one of the most popular places for potential mothers to undergo the in vitro fertilization process and the California legislature should do something to prevent future Nadya Sulemans.
In vitro fertilization involving so many eggs is not only irresponsible, but it may harm the potential mother's health. Regulation would weed out irresponsible people because those who really want a child would have to "try again." It would also crack down on those doctor's who are practicing medicine unethically.

However, I do think that cases like Nadya are rare. It would seem to me that most doctors would opt to regulate the number of eggs they will implant on their own (as a measure of ethics as well as price). Additionally, most mothers would not want to carry 8 children at once, let alone raise them, so I do think this problem is rare. But, even though such cases are rare, they should not be ignored. The burden to society of such behaviour and the likelihood of neglect are two good reasons to regulate now.

N. E. Frye March 31, 2009 at 11:47 am

Malthus was right.

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