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The American Journal of Bioethics 1.4 (2001) 19-20



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Regulating the Fiction of Informed Consent in ART Medicine

Whittier Law School

Andrea Gurmankin (2001) bravely ventures into the harrowing and dynamic world of reproductive medicine to investigate its most vulnerable feature, the practice of informed consent. Her empirical research explores the level of frank risk disclosure provided by assisted reproductive technology (ART) programs to young women who contemplate selling their eggs to infertile couples. Not surprisingly, Gurmankin's research reveals that most programs do not volunteer risk information and many provide inaccurate or incomplete risk information when queried by potential egg donors. The article's empirical foundation and dismaying conclusions prompt inquiry into whether informed consent can ever be a practical reality in a field of medicine grounded in the trilogy of rapidly advancing technologies, emotionally charged expectations, and commercialism.

To begin, the fiction of informed consent in the broader doctor-patient relationship is well described. Studies indicate that as physicians feel increased pressure to see more patients, particularly in the managed care setting, full disclosure and an open discussion are less likely to occur (Furrow et al. 1995). At the same time, patient comprehension is low and decision making about medical choices is often based on factors other than accurate information, such as fear, emotion and religious beliefs (Furrow et al. 1995;Brock and Wartman 1990;Katz 1993). To posit that egg donors receive less risk information and therefore have less opportunity for informed consent than patients in other medical specialty areas is truly a bleak prospect. And while Gurmankin does not actively compare ART patients with other patient populations, she does reference the psychological literature on decision making and speculate about its applicability to oocyte donors, furthering her concern about the basis on which a do-nor's decision is made.

The role of informed consent in oocyte donation is further complicated by the way in which egg donors are perceived in the overall treatment plan for the infertile couple. Granted, an egg donor is essential to successful treatment of the couple, but is she treated as a patient, quasipatient, or even nonpatient by the physician monitoring her progress in the donation process? If a single physician is retained to perform both egg retrieval from the donor and IVF for the intended mother, a clear conflict of interest arises. The physician must simultaneously maximize the opportunity for pregnancy by retrieving as many eggs as possible, while minimizing the risk of harm to the donor by limiting the number of eggs that are produced. Since it is the infertile couple who generally pays the phy-sician's fees, it seems likely this conflict would more often be resolved in favor of the sponsoring couple. Perhaps physicians are not fully cognizant of this conflict because they don't view the egg donor as a patient. Because she gains no medical benefit from the physician's services, she may be perceived as a pure instrumentality to the doctor's therapeutic capabilities, which are directed solely at the infertile couple.

Even if the egg donor is cared for by an independent physician, one who is not involved in the treatment of the infertile couple, the doctor-patient relationship still defies traditional parameters. In the course of (euphemistically) donating her eggs, the donor derives and the physician provides no medical benefit. If informed consent is truly a doctrine in which risks and benefits are disclosed for the sake of rational balancing, it is logical that the absence of benefit in the egg donor scenario would confound the disclosure process. If a doctor can offer no medical benefits, she may be inclined to minimize the medical risks. Commercial gain is such a rare patient goal that at this juncture it simply can't be reconciled with the informed-consent doctrine.

In California, lawmakers became aware of the potential vulnerability of egg donors and drafted legislation to address some of those concerns. In February 2000 State Senator [End Page 19] Tom Hayden introduced Senate Bill 1630 into the...

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