I Want To Put A Baby In You: Grandma's Pregnant
Should legal limits be placed on the use of assisted reproductive technology by older individuals and couples?
This might bring back law school memories of the fertile octogenarian. Last week, 55 year-old Sharon Cutts became the oldest woman in the United Kingdom to give birth to triplets. Cutts, already a mother of four adult children, underwent several rounds of infertility treatment, including using an egg donor and in vitro fertilization procedures in the Republic of Cyprus (not Northern Cyprus, occupied by Turkey). Cutts has faced significant backlash and criticism, including accusations of being “selfish” for choosing to undergo assisted reproduction at her age.
Is the backlash fair? And more interestingly, should legal limits be placed on the use of assisted reproductive technology by older individuals and couples?
Oldest Woman To Give Birth. At 55, Cutts is still a spring chicken compared to the current record holder. In 2008, Rajo Devi Lohan of India, an egg donor recipient, gave birth to a daughter at age 70. The holder of the title of oldest mother of triplets in the world also goes to an Indian woman. Bhateri Devi was 66 when she used donor eggs and the same clinic as Lohan to have her triplets in 2010.
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Why Cyprus? Each country has its cultural and legal stance on what age is too old to be a parent – and, more specifically, at what age doctors will no longer perform assisted reproductive technology techniques on the patient. Cutts has been candid that she chose Cyprus because its doctors perform IVF on patients up to age 60. In contrast, the National Health Service in the United Kingdom offers IVF only to women under the age of 43.
Current Legal Status. Most countries, including the United States, do not have legislation that allows or prohibits the use of assisted reproductive technology based on age. Instead, an age limit is often established either through public healthcare or private healthcare providers. In Israel, for example, the government-run healthcare system provides free IVF for up to two children for women up to the age of 42. After the age of 42, a woman would have to seek a private provider and pay out of pocket.
Some countries do have legal restrictions. For example, Greece permits surrogacy between Greek residents, but the would-be mother may be no older than 50.
Within the United States, a number of states require that insurance providers within the state offer coverage for fertility issues. For instance, in Connecticut, New York, New Jersey, and Rhode Island, coverage is only required for woman up to a certain age, ranging from 40 to 44.
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ASRM. Despite the lack of legislation addressing this issue, most American fertility clinics abide by the ethical guidelines set by the American Society for Reproductive Medicine (ASRM). On the topic of oocyte (egg) donation or IVF for a woman over 50, the ASRM Ethics Committee states that physicians should obtain a “complete medical evaluation before deciding to attempt transfer of embryos to any woman over age 50.” ASRM also strongly discourages any embryo transfer to a woman over 50 with underlying health issues that could complicate a pregnancy, and strongly discourages embryo transfer to any woman over 55, regardless of health history.
But the same ASRM Ethics Committee report is quick to recognize that there may be variations across cultures, noting that some arguments in favor of older women undergoing IVF “are based on societal practices, gender equality, and reproductive freedom.”
Gender Equality. Of the arguments in favor of IVF for older women, gender equality issues likely resonate most. There are countless examples of men becoming fathers at an advanced age. Among celebrities, Robert DeNiro was 68 years old when he and his wife had a daughter via surrogate. Steve Martin had his first child at 67. In short, if the roles of Cutts and her boyfriend (who’s 40) were reversed, there’d be little outrage at all.
Moreover, despite studies showing that advanced paternal age is linked to higher incidents of Down syndrome, Klinefelter syndrome, and schizophrenia, we have not seen movements to restrict older men who may want to reproduce.
Fitness to Parent. Many of the protests against older reproduction rely on the likelihood of the death of the mother before the child reaches adulthood. That argument, however, carries less weight in Cutts’s case, since she is active and has longevity in her genes; Cutts’s mother is healthy at 75, and she had a grandmother who lived to be 100.
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Separately, some even question whether it may be beneficial to have significantly older parents who are mature and have experience with other children. As actress Halle Berry recently said, “Nature has got it all wrong. When you’re younger, it should be harder to get pregnant, and as you get older it should be easier.”
Regardless of the debate surrounding these issues, gender equality concerns once again arise. Even if older women make less fit parents, there’s simply no legislation being contemplated today that would restrict older men from having children at any age they would like. And the potential for asymmetry between men and women in this area should give us pause before considering any shift in the legal landscape.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.
