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Abstract: The “ratchet” effect—a phenomenon in which stopping or reversing course becomes impossible—has been largely ignored by the doctrine of informed consent. Health contexts like fertility treatment are particularly vulnerable to such effects: patients may temporarily be willing to accept increasing risks and costs when focusing on the risks and costs already incurred.
Not all changes in preferences are concerning: new information about the efficacy of treatment or about a patient’s own medical condition may better reveal a patient’s true preferences over treatment. Instead, the problem occurs when patients focus on the cumulative costs of, or risks associated with, past failed treatments in deciding whether to pursue additional treatment. This focus risks temporarily ratcheting up the acceptable cost or risk for an additional chance at a positive outcome, raising it above the cost or risk a patient would find otherwise acceptable. This predictable reaction ends up harming patients both physically and financially.
Given the broad range of reasonable preferences over acceptable risks and costs to achieve a viable pregnancy, the law should be very careful to protect patient autonomy in this context. The traditional tool for disclosing medical information that a patient would need to make their own individualized choice—informed consent—currently does not make any allowance for a risk ratchet effect.
This Article proposes a soft intervention that balances respect for patient’s preferences with nudges against incremental ratcheting of acceptable risks and costs. This informational intervention in the form of a patient decision aid (“Preference Tracker”) records initial preferences and requires a discussion when those preferences change. Patients are free to change their minds, but providers have the obligation to discuss this decision. This intervention is entirely feasible at various government levels and does not fall prey to the underenforcement that plagues litigation-based informed consent. This more fulsome implementation of informed consent can apply to other emotionally charged contexts and is necessary for the continued success of ART services.
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