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Cross-border reproductive care: an Ethics Committee opinion

Cross-border reproductive care is a growing worldwide phenomenon, raising questions about why assisted reproductive technology patients travel for care, what harms and benefits may result, and what duties health care providers may have in advising and treating the patients who travel for reproductive services. Cross-border care may benefit or harm assisted reproductive technology stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries. This document replaces the previous document of the same name, last published in 2016. (Fertil Steril® 2022;117:954–62. ©2022 by American Society for Reproductive Medicine.)

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KEY POINTS

  • Cross-border reproductive care (CBRC) refers to the activity surrounding the patients who travel outside their country of domicile to seek assisted reproductive services and treatment. Cross-border reproductive care affects both the departure and the destination countries from which and to which patients travel. Cross-border reproductive care is a growing worldwide phenomenon, raising questions about why assisted reproductive technology (ART) patients travel to another country, what benefits and harms may result, and what duties physicians may have in advising and treating these patients.
  • The main reasons cited by patients for CBRC are a desire to access broader and higher-quality care, a need to reduce the cost of care, an effort to circumvent legal restrictions in the departure country, and a desire for privacy or cultural comfort in the destination country.
  • Cross-border care offers benefits and poses potential harms to ART stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries.
  • Physicians in departure countries have no independent duty to inform patients about opportunities for CBRC, but they must not misinform patients when responding to questions about ART options abroad.
  • Physicians in destination countries have a duty to uphold local standards of care, legal requirements, and informed consent, but they have no duty to learn about or disclose the legal, practical, or other nonmedical barriers a patient might face in accessing CBRC. Patients considering CBRC should seek advice from qualified legal experts who can provide guidance on legal aspects of such activity, both in the destination country and upon their return to the departure country.
  • Patients seeking CBRC may have unique ancillary needs, and referral to other qualified experts, including mental health professionals, should be considered and is encouraged when appropriate.
Infertility knows no political boundaries, but prevailing policies, costs, and laws within an individual's country of domicile can hamper access to treatment. These formal and informal country-based restrictions on access to assisted reproductive technology (ART) do little to temper their citizens' desire for parenthood. Increasingly, prospective parents from around the globe who face reduced access to advanced fertility care at home are traveling across national borders to seek fertility and ART treatments. This practice, commonly referred to as cross-border reproductive care (CBRC), has significant implications for stakeholders in both the departure and destination countries. The following is a discussion of the incidence of and reasons for CBRC, its potential benefits and harms, and the ethical considerations that arise in treating or advising patients who leave home to access assisted reproductive care.

INCIDENCE OF CBRC

Comprehensive data on the worldwide incidence of CBRC continue to evolve. In a 2010 survey of CBRC in Europe, researchers counted 24,000–30,000 cycles of cross-border treatment annually, involving 11,000–14,000 patients (1, 2) and representing approximately 5% of all European fertility care for that time period (3).

Early survey data from the United States found that 4% of all fertility treatments (approximately 6,000 cycles) were delivered to non-US domiciliaries (2, 4). More recent data from a 2017 study found that the percentage of ART cycles performed for non-US residents increased from 1.2% in 2006 to 2.8% in 2013, with treatment delivered to residents of 147 countries. Compared with resident cycles, non-US resident cycles had a higher use of specialized treatment techniques, such as oocyte donation (10.6% vs. 42.6%), gestational surrogacy (1.6% vs. 12.4%), and preimplantation genetic testing (PGT) (5.3% vs. 19.1%) (5). The largest groups of incoming patients were from Latin America (39%) and Europe (25%). Conversely, the incidence of US patients traveling abroad for care is estimated to be far lower than the incidence of patients coming into the United States (2, 6).

The volume of CBRC activity is difficult to estimate accurately, given the lack of a robust international reporting system (7). It is easier to collect data in destination countries and regions that maintain ART databases in which a patient's country of origin is included as a variable. Identifying those who leave home to access care requires either high patient response rates to posted surveys or elaborate tracing through multiple foreign ART databases. Some efforts have been made at gathering these data, with limited results. A 2016 study aimed at developing a prospective data collection system for CBRC in the United States and Canada found that only 1 of the 7 Canadian and none of the 46 US clinics that expressed interest in collecting data on patients’ country of origin and reason for travel actually collected those data (8). To date, a precise accounting of global ART travel remains a goal rather than a reality.

REASONS FOR CBRC

The factors that motivate patients to travel abroad for fertility care are varied, complex, and often interrelated. The reasons for seeking CBRC fall into 4 basic categories: access, cost, regulation, and privacy and cultural comfort. Each is described briefly below.

Travel to Access Broader or Higher-Quality Care

A patient’s ability to access fertility care in his or her country of domicile depends on the supply of ART services, the quality of care offered, the cost of fertility services offered, the array of treatment options available, and the waiting time for obtaining care. Survey data suggest that each of these factors plays a role in motivating cross-border fertility travel, particularly in the Middle East, Southeast Asia, and Latin America, where ART clinics are scarce (7).

Travel is also more prevalent from the departure countries where the supply of donor gametes and gestational services is low (compared with demand), owing primarily to regulatory, compensatory, and/or anonymity policies. The countries that restrict payments to gamete donors and gestational carriers see most of their fertility travelers leaving to access these services across borders (8, 9). National policies that require disclosure of donor identity also affect the availability of nonidentified or nondirected donor gametes and hence factor into fertility travel. Patients in Sweden, the United Kingdom, and Norway, for example, report the desire for access to nonidentified gamete donors as a factor in their decision to seek care abroad (1, 10). In Canada, 80% of the women who travel for ART do so in search of nonidentified donor eggs (2). However, with the growing use of direct-to-consumer genetic testing, anonymity cannot be guaranteed in any country. Even for gametes that were previously considered or intended to be anonymous, donor identity may at some point become known.

There are certain groups of patients who may be more likely to seek CBRC, such as individual(s) who may not be able to have a child without assistance. These may include people who are unmarried, single, gay, transgender, or of advanced age. For some people, there may be domestic restrictions placed on access to reproductive care related to local, cultural, and legal barriers, and these individuals may opt to seek reproductive care elsewhere (11–13). For example, a report on access to reproductive care in Middle Eastern countries found that only opposite-sex married individuals had access to reproductive care, with the exception of Israel (14).

Patients’ desire to access higher-quality care also figures prominently in CBRC. Most of the patients who travel abroad for care have received treatment in their home country, often for several years. Treatment failures, along with a perception that clinics abroad employ more highly trained personnel, use more up-to-date equipment, and offer more specialized services, may prompt experienced ART patients to seek treatment abroad (9, 10, 15, 16). Finally, patients may travel to avoid long waiting times, such as in countries that include infertility care as part of their national health service (15, 17).

Travel to Reduce the Cost of Fertility Care

The high cost of ART is a well-described barrier to its use. Because fertility treatment can be prohibitively expensive, it is utilized by only a fraction of those in need of care (18). Even patients who can afford care often incur financial hardship in their quest for parenthood (19). Global price variations have been published, with the average price of an in vitro fertilization (IVF) cycle being the highest in the United States (20) and significantly lower in countries such as India (21, 22). Data show that many individuals seek fertility treatment where ART is substantially less costly than in their home countries, despite concerns about lower reported success rates (13). The fiscal impact of ART on patients varies across the globe; patients in countries that fund care as part of a national health service are impacted the least, whereas those in nonreimbursement countries are impacted the most, sometimes incurring lasting financial harm (18, 23).

Disparities in the fees paid to gamete donors and gestational carriers also incentivize travel. Surveys of patients who travel to access third-party reproductive services indicate that cost is a significant factor in their decision to leave home (1, 2). Media reports indicate that India has been a popular destination country for accessing gestational surrogacy services because of its significantly lower compensation amounts (24). However, a recent bill introduced into Parliament seeks to severely limit commercial surrogacy in India (25). Compensation to oocyte and sperm donors also varies considerably from country to country, and may or may not also include compensation for unpaid time from work relating to fertility treatments, travel time, and medical expenses (1, 26).

Travel to Circumvent ART Laws and Avoid Discrimination

Legal regulation of ART worldwide occurs on a country-bycountry basis, with no overarching international treaties or formal laws in place. Logically and empirically, the jurisdictions with restrictive laws are more likely to serve as departure countries, whereas countries with fewer legal restrictions are patronized as destination countries. The act of seeking fertility care outside of one's country of residence to avoid application of prevailing law is sometimes referred to as ‘‘circumvention tourism’’ (27, 28).

Assisted reproductive technology regulations that motivate the use of CBRC fall into 2 broad categories: restrictions on who can access fertility care and restrictions on what fertility care can be accessed (13). Laws restricting who can access fertility care typically restrict access based on patient demographics. Restrictions on patient age, marital status, and sexual orientation are embedded in law in some countries, sending older, single, and gay and lesbian patients across national borders. An example of this was described earlier, in the report on access to reproductive care in Middle Eastern countries, which found that only opposite-sex married individuals have access to reproductive care, with the exception of Israel (14). Similarly, in Germany oocyte donation is legally prohibited, as is IVF for homosexual individuals (29), and in Italy same-sex individuals, single women, and people of advanced reproductive age are denied access to medically assisted reproduction (30). In contrast, in some US states, strict nondiscrimination laws prohibit ART clinics from denying care on the basis of a host of demographic factors, including race, ethnicity, disability, marital status, sexual orientation, and gender identity (31, 32).

Legal restrictions on what services can be offered do little to quash patients’ desire for these services. Prohibitions on ART services, including PGT, selection of fetal sex, compensation for gamete donation, and compensation for gestational surrogacy, exist in some jurisdictions and prompt travel to seek ART services. As noted earlier, recent US data show that, compared with resident cycles, nonresident IVF cycles had a higher use of specialized treatment techniques, such as oocyte donation (10.6% vs. 42.6%), gestational carriers (1.6% vs. 12.4%), and PGT (5), suggesting that many of these nonresident cycles were possibly driven by a desire for these techniques. It is argued that CBRC is motivated in part by restrictive reproductive laws that exist in some countries (33). At the same time, there is little or no support for punishing patients who evade the law in pursuit of biologic parenthood; nor is there widespread advocacy for penalizing the physicians who assist patients in their quest to access CBRC, although laws in some countries do deem such conduct unlawful (12, 19). The patients considering CBRC should seek advice from qualified legal experts who can provide guidance on legal aspects of such activity, and providers should recommend this to their CBRC patients.

Travel for Privacy and Cultural Comfort

The desire for privacy or for care within a familiar environment may motivate some patients to seek treatment abroad. Often these patients will select a country in which they have extended family or where they have a degree of cultural familiarity. A desire for privacy and increasingly easy access to international travel is cited by patients as factors in their decision to seek treatment abroad (2). Family connections, cultural comfort, and access to racially and ethnically matched donor gametes also play a role in seeking CBRC (9). The growing data surrounding CBRC confirm that patients’ motivations for fertility travel are diverse. At the same time, retrospective literature reviews conclude that patients’ level of satisfaction with CBRC and its outcomes is generally high (34).

POTENTIAL BENEFITS OF CBRC

Cross-border reproductive care has potential benefits for ART stakeholders, including patients and their partners and offspring, ART providers, gamete donors, gestational carriers, and local populations in destination countries. These benefits flow from the 4 main factors that motivate the use of CBRC: improved access, reduced cost, circumvention of legal restrictions or avoidance of discrimination, and travel for privacy and cultural comfort.

Travel to Access Broader or Higher-Quality Care

Data suggest that tens of thousands of patients annually access CBRC (1, 2). A reasonable, but unproven, assumption regarding these data is that without CBRC, these patients would forgo or discontinue fertility care in their home countries. This presumed that net increase in worldwide utilization of ART is a benefit to patients and their partners, especially when treatment yields a successful outcome.

On a more philosophical level, access to cross-national care is a benefit to the offspring who would not have been born without the foreign treatment. Patients and their offspring may be benefited by the availability of higher quality care offered earlier in the patient's life, increasing the chances of a healthier outcome for all. Improved access to donor gametes and gestational services is another overall benefit of CBRC (4). In countries with legislation limiting payment for oocyte donation, utilization of donor oocytes is very low (e.g., 3% of all United Kingdom cycles compared with 12% in the United States) (35). Improving access to donor oocytes improves IVF success rates for some patients, thus benefiting those who travel to procure donor gametes.

Travel to Reduce the Cost of Fertility Care

Patients also benefit from the lower cost of care in CBRC. Lower costs may improve outcomes by increasing the number of cycles a patient can afford to undergo. In addition, research shows that patients whose treatment is covered by insurance have lower rates of multiple pregnancies than the patients who must endure financial hardship to access care (36). Affordability is associated with better decision making concerning treatment (e.g., fewer embryos transferred), because patients may not be faced with the risk of depleting their resources for a chance at biologic parenthood. That said, it must be noted that cross-border treatments have a higher rate of multiple pregnancies; this is a risk of assisted conception that should be disclosed to every patient, no matter the location of their treatment (37). Additionally, these multiple pregnancies are associated with poorer obstetric and neonatal outcomes; these additional (and likely unanticipated) costs may then be incurred by the patients in their home countries.

Travel to Circumvent ART Law and Avoid Discrimination

Traveling to avoid the application of restrictive laws in a home jurisdiction allows patients to escape from discrimination based on characteristics that are unrelated to their medical suitability for treatment. Independent of cost differences, patients may use CBRC to circumvent legal restrictions preventing fertility care in their home country. By traveling, patients who face discrimination at home have a chance to access the services they require to become parents, thereby realizing their right to build a family. In a field sometimes criticized for catering to White, middle- and upper-income individuals, increasing diversity among the patient population by removing discriminatory barriers and lowering costs is a benefit to the individual patients as well as to the medical practice (18).

Travel for Privacy and Cultural Comfort

Some patients will benefit from the privacy that CBRC provides. The individual(s) who struggle with infertility may wish to escape the scrutiny that even well-meaning family and friends may apply. Receiving treatment without having to report daily progress and eventual outcomes can be a relief for some patients. For others, accessing treatment in a country of origin with a familiar language and cultural sensibility can also enhance the ART experience.

One additional benefit of CBRC may be the benefit to the local economies from inbound travel. Revenues from traveling patients can contribute substantially to local economies (24). Recent Turkish data found that the per capita expenditures of inbound medical tourists were more than double those of other tourists (38). Increased demand for fertility services can enhance access to both ART and general medical care for local populations. Assisted reproductive technology clinics must be brick-and-mortar structures equipped with functioning embryology laboratories, surgical suites, and patient examination rooms. These improvements can benefit local populations in the form of increased ART services or convertible medical infrastructure.

POTENTIAL HARMS OF CBRC

The potential harms of CBRC can be measured by their impact on stakeholders, including patients and their partners and offspring, ART providers, third-party gamete donors and gestational carriers, and local populations in the destination country.

Health and Safety Concerns

The primary concern for traveling patients is the protection of their health and safety and that of their future children. In the ART context, health and safety concerns often focus on the transmission of infectious diseases to patients or genetic disorders to offspring. In the absence of international policies and norms dictating quality control measures, patients are disadvantaged in their ability to discover and assess the standard of care in any given foreign jurisdiction. Essential measures of quality, such as the expertise of physicians and embryology staff; sophistication of the screening, surgical, and laboratory technology; and basic precautions to prevent contamination, damage, and misdirection of gametes and embryos, can be difficult for a visiting patient to assess.

Indeed, patients take some risk when they access any fertility treatment, but the risk increases when patients leave their home countries where information about quality is likely more accessible.

In addition, if patients have medical or surgical complications from their fertility treatments that are identified after they return to their country of domicile, the lack of access to their medical records may present additional challenges to their care. Complicating this matter, patients may not be completely forthcoming about fertility care received internationally because of insurance coverage concerns. These unique situations may present unanticipated medical and ethical challenges for both the patient and provider.

Health and Safety of Offspring

The quality of ART care can impact the health of offspring, particularly in the context of multiple pregnancies. This is particularly true for CBRC, where limited patient information, out-of-pocket payments, time constraints, desire for success, and competition between fertility centers may push physicians to use more aggressive treatment protocols to increase success rates. This may lead to increased risks of maternal or fetal complications. The morbidity and mortality associated with high-order multiple pregnancy are well described and have prompted some countries to limit the number of embryos transferred in any single IVF cycle (39). The patients who travel to circumvent embryo transfer limits are at increased risk for multiple pregnancies (37). These situations may result in increased costs incurred later in their country of domicile (40–42). Illustrating this, French data (43) found that donor egg pregnancies conceived abroad had a higher number of embryos transferred (2.1 vs. 1.7, P¼.001), a higher rate of multiple pregnancies (47.9% vs. 9.1%, P¼.001), lower birth weight (2,678 vs. 3,045 g, P¼.001), and higher prevalence of intrauterine growth retardation (11.1% vs. 4.2%, P¼.04). Similar findings were seen in Australia, where at one center one third of all multiple pregnancy cases resulted from treatment overseas (44).

Additionally, offspring who are the result of gamete donation abroad may have less access to information about their genetic origins than identity-nondisclosed, donorconceived children born following domestic arrangements. Although these donors were previously known as ‘‘anonymous,’’ anonymity for donors can no longer be guaranteed, with the worldwide popularity of consumer genetic testing and online groups. Although access to and information about gamete donors are highly variable, offspring attempting to locate their gamete donors abroad would likely face greater hurdles than their domestically conceived counterparts, because access to these groups and services depends on a particular country’s public access to online information. Language, Information, and Legal Barriers Patients may be harmed by lack of access to understandable information about their treatment options. Patients may not speak the native language of the destination country, which can make it difficult for them to make the best possible decisions regarding their treatment. Giving informed consent in a foreign language is of questionable value and validity.

Reduced quality of care and language barriers can combine to victimize patients once they arrive in the destination country and financially commit to treatment. Misinformation may come directly from the fertility clinics or from CBRC brokers, who may provide limited transparency, with limited information about their services and remuneration (45). In addition, because of time pressures and different standards of medical ethics, physicians abroad may not follow the same standards of informed consent that patients experience in their home countries (46, 47). Ideally, CBRC fertility clinics should be transparent in disclosing the prices of all services to help avoid unanticipated debt after treatment (13). At least 1 report warns that patients traveling to access donor eggs can experience ‘‘bait and switch’’—the use of a different gamete donor than the 1 the patient selects—a scheme discovered when the growing child bears no resemblance to the selected donor (48). In addition, the standard of reproductive care with respect to security of unused and frozen sperm samples, eggs, and embryos may not be assured, particularly in destinations with poor legal oversight (13, 46). If a patient is harmed by treatment abroad, access to legal recourse may be exceedingly difficult. Medical malpractice laws in a destination country, combined with jurisdictional reach, can diminish the likelihood and extent of an injured patient's recovery from a negligent foreign provider (49).

Additional harms to patients and their partners include the possibility of changing or evolving laws in destination jurisdictions. The timing and effective dates of such legal changes could jeopardize an anticipated or ongoing reproductive plan, possibly even resulting in the inability to remove a newborn child from the destination country. This may also affect cryopreserved embryos or gametes, which will be stored in the destination country but may need to be transferred internationally at some point in the future (50). Intended parents who engage a gestational carrier in a destination country for the purpose of securing citizenship for their child in the place of birth can also experience legal difficulties upon return to their country of domicile. The increasing complexity surrounding the legal status of CBRC offspring cautions patients and their partners to give serious attention to matters such as legal parentage, immigration, and citizenship (51). As with any complex legal matter, consultation with a legal professional experienced in the laws of the destination country as well as the prospective parents’ home country is prudent, and is particularly important for surrogacy arrangements in which the child will be born in the destination country.

Harm to Donors and Gestational Carriers

Concern about exploitation of gamete donors and gestational carriers in destination countries occupies much of the critique of CBRC (33, 52, 53). This critique presumes that patients seeking third-party reproduction will be wealthier or more powerful in other ways than women who act as donors or gestational carriers. In countries where the status of women is already problematically low, building a market for reproductive services can fuel the view that a woman's value is limited to her physical characteristics or childbearing capacity. Poverty, illiteracy, and absence of socioeconomic development in some societies may motivate some disadvantaged women to donate oocytes or serve as carriers for financial reward. Even worse, in some countries young women can be forced to participate in commercial donor or carrier programs shortly after reaching puberty (45). Although payments to donors and gestational carriers can temporarily raise their economic status, some argue that such practices permanently harm women by reducing them to commodities available for exploitation. However, it is important to note that for some women, being a gestational carrier offers a unique opportunity for financial gain and an improvement in personal circumstances.

Harms may also include malfeasance by an intermediary agency or breach of an agreement by a prospective parent(s), inflicting economic harm on third-party donors or gestational carriers. In rare but devastating cases, a prospective parent may fail or refuse to claim parentage of a child born by CBRC surrogacy, leaving the gestational carrier with the child in her care and no legal recourse against the foreign commissioning parents (54). In addition, in times when international travel is challenging or impossible (such as a global pandemic or natural disaster), it may be impossible for a gestational carrier to actually transfer the offspring that she has been carrying to the prospective parent(s).

Donors and gestational carriers in destination countries may suffer physical, social, economic, and psychological harm. It is unclear how much health care these women receive and of what quality and whether they are stigmatized in their native culture for taking on this role. For example, the economic pressure to have a donor produce as many eggs as possible may increase the risk of ovarian hyperstimulation syndrome in a geographic location with limited medical resources to treat this condition. Risks to gestational carriers include complications related to a multifetal pregnancy, postpartum hemorrhage, and shock. Additionally, destination countries may not have the same resources or access to care that would be available to pregnant women in their country of origin, thereby introducing increased risks over those that would be present if the same woman were to deliver in the prospective parents’ country of origin.

Harm to Local Populations

Tourism has the effect of raising the price of goods in the visited area, and travel for reproductive purposes can be expected to have the same effect. Increased demand for reproductive services in destination countries could raise the prices for domestic populations, making their access to services more difficult. In addition, a nation's effort to attract foreign ART patients could negatively impact its ability to provide health care to its own population. To the extent that resources—human, financial, and technological—are diverted to fertility care, local populations may suffer from lower quality and less health care as a result of this siphoning effect (55).

ETHICAL CONSIDERATIONS FOR DEPARTURE COUNTRY PHYSICIANS

Patients who travel for ART begin their journey in their home country, often by consulting several sources for information, including physicians. If a potential ART traveler has a preexisting relationship with a provider in a departure country, several legal and ethical dilemmas can be anticipated. Three specific questions arise:
  1. What duty, if any, does the departure-country physician have to inform the patient about opportunities for care abroad?
  2. What duty, if any, does a departure-country physician have to inform patients about the risks and benefits of CBRC, including specific risks in a particular destination country?
  3. What duty, if any, does a provider have to resume care of a patient who obtains ART services abroad and returns for follow-up care? Guidance for each of these dilemmas can be gleaned from the familiar doctrine of informed consent.


Duty to Inform Patients about CBRC Opportunities

A fundamental principle of medical ethics is to respect patients by treating them as autonomous individuals. This means consulting with patients honestly and openly. One prong of the principle of respect for patient autonomy is expressed by the doctrine of informed consent. Briefly, physicians have a duty to provide patients with the information they need to understand their diagnosis and treatment options, as well as the risks and benefits of accepting or forgoing treatment so that they can make knowing and informed decisions (56).

If a patient asks a treating physician about options for care abroad, the provider has an ethical duty to accurately present his or her knowledge about those options. A physician with experiential or secondary knowledge about CBRC, including specific information about clinical options abroad, may disclose such information to inquiring patients. A physician has a duty to disclose any conflicts of interest, such as financial interests in an overseas ART program. Any discussion about CBRC as a treatment option should include information relevant to the patient's decision, including any knowledge gaps or concerns the provider has regarding a possible care plan. At the same time, physicians who have no information about CBRC have no duty to research the option for inquiring patients, nor are they duty-bound to offer the possibility of CBRC as a treatment option.

Duty to Disclose Risks and Benefits of CBRC Care

Informed consent requires physicians to disclose the risks and benefits of suggested treatment. When a patient asks a departure-country provider about the possibilities of out-ofcountry care, that patient is not inquiring about treatment options being presented by the physician. Thus, the physician does not act as a treating physician vis-a-vis that patient and has no duty to be informed about or disclose the risks and benefits of such treatment. If a physician possesses special knowledge about a particular provider or service about which the patient inquires, a duty arises not to misinform the patient or present false information. A departurecountry physician has no independent duty to investigate the risks or benefits of treatment abroad. The physician is free to share opinions about the merits of CBRC and should be clear about whether the information is given as a recommendation or merely as guidance.

Duty to Resume Care of a Patient Who Receives CBRC Treatment

A patient who returns from abroad may have little or no documentation explaining the care she received. The lack or absence of medical records can pose significant challenges for treating physicians, raising concerns about whether to treat or resume treatment of returning patients. In some cases, physicians may have a contractual duty to treat returning patients based on preexisting health insurance or other binding arrangements. When no such duty exists, physicians are free to accept or decline to accept patients into their practice, so long as any declination is accompanied by reasonable notice giving the patient an opportunity to seek another willing provider. The physician-patient relationship is largely a voluntary one, which both parties may choose to enter or not, so long as their conduct is nondiscriminatory (57). A possible interpretation of the returning patient's request for treatment would be that the patient merely suspended, rather than terminated, the relationship when she sought care abroad. In this case, a physician who wishes to decline to provide treatment should be guided by the duty to not abandon a patient, including the related duties to notify the patient and give her time to seek care elsewhere. A physician who wishes to terminate an existing relationship with a patient returning after receiving cross-border care may refer the patient to a willing provider.

ETHICAL CONSIDERATIONS FOR DESTINATION-COUNTRY PHYSICIANS

Providers who treat traveling patients are held to whatever standards govern medical care in their own jurisdiction, including standards governing informed consent. That said, do physicians owe additional duties to patients who they know reside in, and plan to return to, another country? These additional duties might include disclosure of legal or practical information relating to the patient's return home. For example, if a physician knows that patients from certain departure countries have difficulty procuring immigration or citizenship paperwork for donor-conceived offspring, does the provider have a duty to warn the patients about this possible challenge? If a physician knows that a requested service is illegal in a patient's home country, does the provider have a duty to discuss the patient's desire to avoid application of these or other restrictive laws? We think not. A physician's duty to provide high-quality medical care and accurate treatment information does not include a duty to investigate or disclose nonmedical information over which the physician has no control and from which the physician derives no personal benefit. Destination-country physicians have no duty to act as a patient's legal advisor, and in fact doing so carries a risk of engaging in the illegal practice of law.

CONCLUSIONS

Cross-border reproductive care is a growing reality in ART. The main factors that incentivize patients to travel abroad for fertility care—access, cost, regulation, and privacy and cultural comfort—are poised to remain features of the global reproductive health market. The benefits and harms that accompany CBRC are far-reaching, impacting ART stakeholders as well as local populations and medical, economic, and political systems in both departure and destination countries. Physicians who treat ART patients from abroad have a duty to deliver the same quality of care required for all domestic patients. But the delivery of CBRC does not involve a duty to inform or warn patients about the potential legal or practical hazards that may accompany such care. The physicians who are asked to assist patients considering ART travel may, but are not obliged to, offer guidance about the options for CBRC. Referral to qualified experts, including legal and mental health professionals, should be considered and is encouraged when appropriate. As the practice and delivery of reproductive medicine becomes more internationalized, physicians are well served to understand the extent and limits of their medical, ethical, and legal duties to traveling ART patients.

Acknowledgments: This report was developed under the direction of the Ethics Committee of the American Society for Reproductive Medicine as a service to its members and other practicing clinicians. Although this document reflects appropriate management of a problem encountered in the practice of reproductive medicine, it is not intended to be the only approved standard of practice or to dictate an exclusive course of treatment. Other plans of management may be appropriate, taking into account the needs of the individual patient, available resources, and institutional or clinical practice limitations. The Ethics Committee and the Board of Directors of the American Society for Reproductive Medicine have approved this report.

This document was reviewed by ASRM members, and their input was considered in the preparation of the final document. The following members of the ASRM Ethics Committee participated in the development of this document: Sigal Klipstein, M.D., Ricardo Azziz, M.D., M.P.H., M.B.A., Katherine Cameron, M.D., Susan Crockin, J.D., Ruth Farrell, M.D., Catherine Hammack-Aviran, M.A., J.D., Elizabeth Ginsburg, M.D., Mandy Katz-Jaffe, Ph.D., Jennifer Kawwass, M.D., Catherine Racowsky, Ph.D., Robert Rebar, M.D., Mary Samplaski, M.D., David Shalowitz, M.D., Chevis Shannon, Dr.P.H., M.P.H., M.B.A., Sean Tipton, M.A., Lynn Westphal, M.D., and Julianne Zweifel, Ph.D. All Committee members disclosed commercial and financial relationships with manufacturers or distributors of goods or services used to treat patients. Members of the Committee who were found to have conflicts of interest based on the relationships disclosed did not participate in the discussion or development of this document.

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  8. Hughes EG, Sawyer A, DeJean D, Adamson GD. Cross-border reproductive care in North America: a pilot study testing a prospective data collection program for in vitro fertilization clinics in Canada and the United States. Fertil Steril 2016;105:786–90.
  9. Blyth E. Fertility patients’ experiences of cross-border reproductive care. Fertil Steril 2010;94:e11–5.
  10. Inhorn MC, Shrivastav P. Globalization and reproductive tourism in the United Arab Emirates. Asia Pac J Public Health 2010;22:68S–74S.
  11. Rodino IS, Goedeke S, Nowoweiski S. Motivations and experiences of patients seeking cross-border reproductive care: the Australian and New Zealand context. Fertil Steril 2014;102:1422–31.
  12. Van Hoof W, Pennings G, De Sutter P. Cross-border reproductive care for law evasion: should physicians be allowed to help infertility patients evade the law of their own country? Eur J Obstet Gynecol Reprod Biol 2016;202:101–5.
  13. Deonandan R. Recent trends in reproductive tourism and international surrogacy: ethical considerations and challenges for policy. Risk Manag Healthc Policy 2015;8:111–9.
  14. Inhorn MC, Birenbaum-Carmeli D, Tremayne S, Gurtin ZB. Assisted reproduction and Middle East kinship: a regional and religious comparison. Reprod Biomed Soc Online 2017;4:41–51.
  15. Pennings G, Autin C, Decleer W, Delbaere A, Delbeke L, Delvigne A, et al. Cross-border reproductive care in Belgium. Hum Reprod 2009;24:3108–18.
  16. Van Hoof W, De Sutter P, Pennings G. ‘‘Now we feel like we did everything we could’’: a qualitative study into the experiences of Dutch patients who travelled to Belgium for infertility treatment. Facts Views Vis Obgyn 2014;6:185–93.
  17. Ferraretti AP, Pennings G, Gianaroli L, Natali F, Magli MC. Cross-border reproductive care: a phenomenon expressing the controversial aspects of reproductive technologies. Reprod Biomed Online 2010;20:261–6.
  18. Nachtigall RD. International disparities in access to infertility services. Fertil Steril 2006;85:871–5.
  19. Davidson CM. Octomom and multi-fetal pregnancies: why federal legislation should require insurers to cover in vitro fertilization. Wm & Mary J Women & L 2010;17:135.
  20. Wu AK, Odisho AY, Washington SL, Katz PP, Smith JF. Out-of-pocket fertility patient expense: data from a multicenter prospective infertility cohort. J Urol 2014;191:427–32.
  21. Dyer SJ, Patel M. The economic impact of infertility on women in developing countries–a systematic review. Facts Views Vis Obgyn 2012;4:102–9.
  22. Widge A. Seeking conception: experiences of urban Indian women with in vitro fertilisation. Patient Educ Couns 2005;59:226–33.
  23. Kraft D. Where families are prized, help is free. The New York Times; 2011. Available at: https://www.nytimes.com/2011/07/18/world/middleeast/18israel.html.
  24. Ryznar M. International commercial surrogacy and its parties. John Marshall Law Rev 2010;43:1009–39.
  25. Timms O. Ending commercial surrogacy in India: significance of the Surrogacy (Regulation) Bill, 2016. Indian J Med Ethics 2018;3: 99–102.
  26. Goedeke S, Shepherd D, Rodino IS. Support for recognition and payment options for egg and sperm donation in New Zealand and Australia. Hum Reprod 2020;35:117–29.
  27. Cohen IG. Circumvention tourism. Cornell Law Rev 2012;97:1309–98.
  28. Cohen IG. Patients with passports: medical tourism, law, and ethics. New York: Oxford University Press; 2015:371–420.
  29. Bassan S, Michaelsen MA. Honeymoon, medical treatment or big business? An analysis of the meanings of the term ‘‘reproductive tourism’’ in German and Israeli public media discourses. Philos Ethics Humanit Med 2013;8:9.
  30. Riezzo I, Neri M, Bello S, Pomara C, Turillazzi E. Italian law on medically assisted reproduction: do women’s autonomy and health matter? BMC Womens Health 2016;16:44.
  31. Daar J. Accessing reproductive technologies: invisible barriers, indelible harms. Berkeley J Gender L & Just 2008;23:18–82.
  32. National Center for Transgender Equality. State nondiscrimination laws. Available at: http://www.transequality.org/issuesresources/map-statetransgender-non-discrimination-laws. Accessed January 11, 2022.
  33. Storrow R. Quests for conception: fertility tourists, globalization and feminist legal theory. Hastings Law J 2005;5:295–330.
  34. Inhorn MC, Patrizio P. The global landscape of cross-border reproductive care: twenty key findings for the new millennium. Curr Opin Obstet Gynecol 2012;24:158–63.
  35. European Society of Human Reproduction and Embryology. ART Factsheet. Available at: https://www.eshre.eu/Press-Room/Resources. Accessed January 11, 2022.
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  39. Stillman RJ, Richter KS, Banks NK, Graham JR. Elective single embryo transfer: a 6-year progressive implementation of 784 single blastocyst transfers and the influence of payment method on patient choice. Fertil Steril 2009; 92:1895–906.
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  43. Vincent-Rohfritsch A, Marszalek A, Santulli P, Gayet V, Chapron C, Goffinet F, et al. Les risques perinataux sont-ils plus importants apres don d’ovocytes a l’etranger? [Risk of perinatal complication and egg donation: role of resorting to cross-border care?]. J Gynecol Obstet Biol Reprod (Paris) 2016;45:866–75.
  44. Waller KA, Dickinson JE, Hart RJ. The contribution of multiple pregnancies from overseas fertility treatment to obstetric services in a Western Australian tertiary obstetric hospital. Aust N Z J Obstet Gynaecol 2017;57:400–4.
  45. Salama M, Isachenko V, Isachenko E, Rahimi G, Mallmann P, Westphal LM, et al. Cross border reproductive care (CBRC): a growing global phenomenon with multidimensional implications (a systematic and critical review). J Assist Reprod Genet 2018;35:1277–88.
  46. Shalev C, Moreno A, Eyal H, Leibel M, Schuz R, Eldar-Geva T. Ethics and regulation of inter-country medically assisted reproduction: a call for action. Isr J Health Policy Res 2016;5:59.
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Ethics Opinions

Ethics Committee Reports are drafted by the members of the ASRM Ethics Committee on the tough ethical dilemmas of reproductive medicine.
Ethics Committee teaser

Planned oocyte cryopreservation to preserve future reproductive potential: an Ethics Committee opinion (2023)

Planned oocyte cryopreservation is an ethically permissible procedure that may help individuals avoid future infertility.
Ethics Committee teaser

Ethical obligations in fertility treatment when intimate partners withhold information from each other: an Ethics Committee opinion (2024)

Clinicians should encourage disclosure between intimate partners but should maintain confidentiality where there is no harm to the partner and/or offspring.
Ethics Committee teaser

Ethical considerations for telemedical delivery of fertility care: an Ethics Committee opinion (2024)

Telemedicine has the potential to increase access to and decrease the cost of care.
Ethics Committee teaser

Misconduct in third-party assisted reproductive technology by participants and nonmedical professionals or entities: an Ethics Committee opinion (2023)

In some instances, it is ethically permissible for the physician to either disclose material information to the affected party or to decline to provide or continue to provide care.

More Resources

MAC 2021 teaser
ASRM Academy on the Go

ASRM MAC Tool 2021

The ASRM Müllerian Anomaly Classification 2021 (MAC2021) includes cervical and vaginal anomalies and standardize terminology within an interactive tool format.

View the MAC Tool
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EMR Shared Phrases/Template Library

This resource includes phrases shared by ASRM physician members to provide a template for individuals to create their own EMR phrases.

View the library
Practice Committee Documents teaser

ASRM Practice Documents

These guidelines have been developed by the ASRM Practice Committee to assist physicians with clinical decisions regarding the care of their patients.

View ASRM Practice Documents
Ethics Committee teaser

ASRM Ethics Opinions

Ethics Committee Reports are drafted by the members of the ASRM Ethics Committee on the tough ethical dilemmas of reproductive medicine.

View ASRM Ethics Opinions
Coding Corner general teaser
Practice Guidance

Coding Corner Q & A

The Coding Corner Q & A is a list of previously submitted and answered questions from ASRM members about coding. Answers are available to ASRM Members only.

View the Q & A
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Practice Guidance

COVID-19 Resources

A compendium of ASRM resources concerning the Novel Corona virus (SARS-COV-2) and COVID-19.

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Patient Resources

ReproductiveFacts.org provides a wide range of information related to reproductive health and infertility through patient education fact sheets, infographics, videos, and other resources.

View Website

Topic Resources

View more on the topic of access to care
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Advocacy in Action

Join the ASRM Advocacy in Action 2024 campaign by making a tax-deductible charitable gift before July 31!  Be part of Advocacy in Action
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Advocacy in Action: May 2024

A summary of federal and state legislation, and highlighting advocacy and outreach efforts of our members. Read about Advocacy in Action
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Advocacy in Action: April 2024

A summary of federal and state legislation, and highlighting advocacy and outreach efforts of our members. Read about Advocacy in Action
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Leave Your Mark! NIAW April 21-27

National Infertility Awareness Week Action Round-Up Click here to leave your mark during NIAW2024
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National Infertility Awareness Week 2024: Leave Your Mark

Next week is National Infertility Awareness Week, a federally recognized health observance founded to increase awareness of infertility.

View the Press Release
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ASRM Today: ASRM Policy Matters: Post-Alabama IVF decision advocacy roundup with Jessie Losch

Jessie Losch, ASRM Government Affairs Manager, updates ASRM Today on the advocacy efforts underway post the Alabama Supreme Court decision. Listen to the Episode
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ASRM provides testimony to Senate Judiciary Committee on threats facing IVF

ASRM shared with the Senate Judiciary Committee the dangers to reproductive medicine nearly two years after the Dobbs decision.

View the Press Release
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A Message from the Office of Public Affairs

ASRM is already pushing for legislation in Congress and the states to protect IVF. It requires resources to analyze and advocate for or against these bills. Help ASRM Protect IVF
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ASRM reacts to Alabama legislation

We are pleased that the legislation passed into law by the Alabama General Assembly will at least allow our members in the state to care for their patients.

View the Press Release
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IVF at the SOTU: Fertility care expected to be major focus at State of the Union

Protecting access to IVF care is expected to be a major theme of the State of the Union on Thursday.

View the Press Release
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ASRM Files Request for Rehearing with Alabama Supreme Court

On Friday, March 1, the appellees in this case filed a request for rehearing with the Alabama Supreme Court. Read about the Amicus Brief
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Update on ASRM's Efforts to Protect IVF

As the situation in Alabama following LePage v Mobile Infirmary, Inc. continues to quickly evolve, we want to ensure you stay apprised of ASRM’s efforts. Read about Advocacy in Action
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Ethical considerations for telemedical delivery of fertility care: an Ethics Committee opinion (2024)

Telemedicine has the potential to increase access to and decrease the cost of care. View the Committee Opinion
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ASRM Responds to Proposed Alabama Legislation

We are proud of our Alabama members and their patients, who have been such incredible advocates working to motivate their legislators to protect IVF.

View the Press Release
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Senate Budget Hearing is Well Timed Following Alabama IVF Ruling

ASRM statement regarding the Senate Budget Committee’s hearing entitled: No Rights to Speak of: The Economic Harms of Restricting Reproductive Freedom.

View the Press Release
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ASRM Responds to Senate’s Failure to Pass Access to Family Building Act

We are disappointed by the Senate’s failure to meet the moment and pass federal legislation protecting access to in vitro fertilization (IVF).

View the Press Release
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Alabama Supreme Court Rules Frozen Embryos are “Unborn Children” and admonishes IVF’s “Wild West” treatment

Legally Speaking™ on presenting facts and reflecting on the impact and potential implications of  legal developments in ART. View the Column
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REBROADCAST - ASRM Today: The Inclusive Family History Project with Serena Chen and Lori Metz

In this episode from ASRM 2023 in New Orleans, Dr. Serena Chen and Lori Metz fill us in on the Inclusive Family History Project. Listen to the Episode
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ASRM Condemns Profoundly Misguided and Dangerous Court Decision in Alabama

In LePage v Mobile Infirmary Clinic, the Alabama Supreme Court made a decision that flies in the face of medical reality and the needs of the citizens.

View the Press Release
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ASRM's CPL Announces Selections for the 2024 Cohort of the PRIMED Scholars Advocacy Program

We were inundated with interest in this program from across ASRM’s membership and are excited to welcome the members of this year’s cohort. Read the press release
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Fertility and Sterility On Air - TOC: January 2024

Topics include the association between thick endometrium with pregnancy hypertensive disorders. state insurance mandates and racial inequities in ART. Listen to the Episode
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ASRM applauds introduction of Access to Family Building Act of 2024

ASRM is thrilled by the introduction of the Access to Family Building Act 

View the Press Release
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June 2023 ASRM Policy Briefing

Find out what the Office of Public Affairs has been doing to influence access to care and reproductive medicine legislation. View the video
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Cross-border reproductive care: an Ethics Committee opinion (2022)

Cross-border reproductive care is a growing worldwide phenomenon, raising questions about why assisted reproductive technology patients travel for care. View the Ethics Committee Document
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Reproductive and infertility care in times of public health crises: an Ethics Committee opinion (2022)

Public health crises often require a framework shift in which patient autonomy is balanced with the need to safeguard the health of the community.  View the Committee opinion
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Disparities in access to effective treatment for infertility in the United States: an Ethics Committee opinion (2021)

In the United States, economic, racial, ethnic, geographic, and other disparities prevent access to fertility treatment and affect treatment outcomes. View the Committee Opinion
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Access to fertility treatment irrespective of marital status, sexual orientation, or gender identity: an Ethics Committee opinion (2021)

Individuals and couples should have access to fertility services irrespective of marital status, sexual orientation, or gender identity. View the Committee Opinion
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What support for IVF looks like

Bipartisan support for IVF, that is responsible for the birth of over 2% of all babies born in the USA each year, will ensure that families continue to grow. View the advocacy resource
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It takes more than one

Why IVF patients often need multiple embryos to have a baby View the advocacy resource
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Oversight of IVF in the US

In the US, medical care is regulated by a complex and comprehensive network of federal and state regulations and professional oversight. View the advocacy resource
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Leadership in Access to Care Course

ASRM Academy introduces the Leadership in Access to Care Course – your opportunity to learn how to address the gaps in reproductive and infertility care. Learn more about the Leadership in Access to Care Course
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Access to Care Special Interest Group (ATCSIG)

The Access To Care Special Interest Group's purpose is to foster the growth of knowledge among the ASRM membership and the medical community regarding the unmet needs that exist today in access to reproductive care Learn more about the Special Interest Group
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Advocacy Resources

ASRM has prepared resources to help explain and advocate for reproductive rights and the continuation of in vitro fertilization and other fertility treatments. View the advocacy resources
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Patient Advocacy Grant

The ASRM Patient Advocacy Grants Program awards funds to patient advocacy organizations to support advocacy efforts and educational programs for patients. View more information about the patient advocacy grant