Malice in ARTLand?
Eli Reshef M.D., Chairperson, SART Advertising Committee
Paul C. Lin, M.D., President, SART
“Misunderstandings and neglect occasion more mischief in the world than malice and wickedness.”
Concerns about truth in advertising have been repeatedly voiced by ASRM before Congress enacted the Fertility Clinic Success Rate and Certification Act in 1992, mandating that all ART clinics report success rate data to the federal government in a standardized manner (1). Blackwell RE et al eloquently articulated these concerns in 1987 in a commentary titled “Are We Exploiting the Infertile Couple” (2). In fact, what spurred the 1992 act was a case of falsely advertised pregnancy rates by a fertility clinic. In 1999, SART/ASRM created guidelines for advertising by ART programs first published in 2004 (3) and periodically thereafter (4, addendum). SART is unique in maintaining oversight for advertising by member clinics- to our knowledge, no other medical organizations in the U.S. do so. The latest guidelines contain escalated actions to deal with advertising violations that are not adequately addressed by member clinics. However, due to a unique approach by the SART Advertising Committee when dealing with member clinics, adversarial actions are rarely necessary.
The SART Advertising Committee is composed of board-certified REIs (in academic and private practice), high-complexity laboratory directors, and nurses. In other words, volunteer peers rather than “bean-counters”. It attempts to personally contact medical and program directors to point out violations on a colleague-to-colleague level first. The vast majority of clinics, once aware of the violations, promptly make appropriate changes to their websites or other advertising vehicles. Admittedly, a search of SART clinic websites will reveal multiple advertising violations. Clearly, the culture of compliance with advertising guidelines is yet to reach a satisfactory level of maturity. Nevertheless, the rapid actions to correct them indicate that most violations are not malicious, exploitative, or predatory (as the lay press periodically mischaracterizes advertising by infertility clinics). The vast majority of clinic directors are simply unaware of violations until they are pointed out by SART. Unfamiliarity with SART advertising guidelines; lack of website maintenance and oversight by clinics; or tasking third-party or administrative personnel to create content and maintain websites, are some of the issues that the Advertising Committee identifies as the cause of many violations.
Such rapid response also indicates that membership in a voluntary organization like SART is highly valued by clinics, who would rather correct violations than push back or leave SART in protest. SART currently has 391 member clinics. It loses clinics mostly because they close or merge rather than leave SART in protest of regulatory heavy-handedness. Do clinics that correct violations eventually regress or do they continue to be compliant? Do non-SART clinics violate truth-in-advertising more often than SART clinics? Has compliance with SART advertising guidelines increased over the years? We do not yet have answers to these questions but hope to provide them in the near future.
Inculcating a culture of compliance is a lengthy process- SART has taken the lead among other medical societies in doing so but recognizes that deficiencies still occur. Periodically, some of our colleagues as well as the lay media will take a “snapshot” of our clinics’ advertising output and suggest that the system is broken or that SART clinics are engaged in predatory practices (5). While we encourage criticism, internal and external, we beg to differ with the implication of malice. Merriam-Webster defines malice as intent to commit an unlawful act or cause harm without legal justification or excuse. We doubt that advertising by SART clinics, as flawed as it may be, can be categorized as such.
The vast majority of us recognizes the vulnerability of our patients and the extremely sensitive nature of our subspecialty. For that reason, SART created advertising guidelines by which most of its member clinics eventually abide.
1. https://www.govinfo.gov/content/pkg/STATUTE-106/pdf/STATUTE-106-Pg3146.pdf. 106 STAT. 3146 PUBLIC LAW 102-493—OCT. 24, 1992
2. Blackwell RE et al.: Are We exploiting the Infertile Couple? Fertil Steril 1987; 48(5):735-739
3. The Practice Committee of the Society for Assisted Reproductive Technology and the American Society for Reproductive Medicine: Guidelines for advertising by ART programs. Fertil Steril 2004; 82(2):527-528
5. Medscape: 'Predatory' Advertising by IVF Clinics. Medscape December 2, 2019 https://www.medscape.com/viewarticle/921970
Summary of SART Advertising Guidelines:
SART implements advertising policy in order to preserve truth in advertising in the ART field and promote public awareness and confidence in its services. Adherence to this advertising policy is a requirement for membership in SART. Advertising by SART members must comply with guidelines of the Federal Trade commission (FTC) The advertisement must not lead patients or the public to believe that the chances of success are greater than they really are If a SART member clinic chooses to display its success rates, it must include a direct link to its own data from the SART Clinic Specific Report (CSR) Claims made in advertising must be supported by verifiable published data Statements denigrating other ART programs are prohibited Ranking programs is prohibited The practice and medical director are held responsible for the content of all advertisements