The Octuplets, Their Mom and the Law

By Judge Andrew NapolitanoFOX News Senior Judicial Analyst

With new details emerging about the California mother who gave birth to octuplets, a list of ethical and legal questions is being raised and the answers may generate legal fallout for both her and the clinic that implanted the embryos.

It is not unlikely that two or three frozen embryos were implanted into the mother, and that they naturally split into triplets and twins. Such an implantation in a healthy 33-year-old woman would not be violative of medical ethics. However, the knowing intentional implantation of eight embryos would violate medical ethics and subject the physician who did so to professional discipline. The severity of the discipline would depend on whether the mother or any of the babies suffers permanent injury.

While medical ethics are enforced by the courts of the states in which the physicians are licensed, they are not criminal procedures, and their enforcement is limited to affecting the physician's professional privileges, not a loss of liberty or property.

It is my view that if the mother received three implants, a number that is acceptable from a medical ethics point of view, and the embryos split into triplets and twins, there is no medical ethics issue here and there is no charge of irresponsibility against the mother.

If, on the other hand, she did receive eight embryos, that could jeopardize her life and health as well as the life and health of the babies, since it is clearly unethical to perform that many implants. Nevertheless, I would argue, if the mother is now healthy and if the babies survive this post-natal period, then there is no harm and thus no foul.

Notwithstanding all of the above, the mother has done a positive good by bringing these children into the world. Life is superior to non-life. Human souls are eternal. Every human life is of potentially infinite value. The God who gave us life reflects His glory through each one of us.

Whatever the medical-ethical issues, there is no legal wrong doing on the part of the mother, as she is not subject to the jurisdiction of any state medical licensing boards, and there is no law prohibiting having 14 children. There may have been wrong doing on the part of the physicians. There is no actual legal limit on the number of embryo implantations permitted. However, the rules in all 50 states say you can't implant such a number of frozen embryos that would jeopardize the life of the mother or the embryos to be carried to term. It's a guideline.

So the question is who did what when? The government and the medical ethics authorities in California will subpoena the records of the fertility clinic where the procedure was done to verify how many embryos were implanted, whether or not the doctor violated medical ethics, and what the natural progression of Nadya Sulemans' body did to the embryos.

A large part of any legal recourse depends on whether Ms. Suleman had informed consent. It also depends on whether the physicians told her in writing and whether she understood the jeopardy to her body and to her babies of having eight implanted embryos. The good news is if she is healthy and if the eight babies are healthy, then any chance of a legal action fades away.

Judge Andrew Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the FOX News Channel. His latest book is "A Nation of Sheep."