Abstract
This chapter highlights the unique legal issues surrounding fertility preservation, including legal issues of informed consent and autonomy for individual and coupled adults as well as minors; embryo disputes and related embryo legislation; legal distinctions between informed consent and contract law and related documentation; current, relevant legislation and case law surrounding mandatory access to insurance coverage for fertility preservation; posthumous reproduction including access to genetic material and resulting parent-child status; and third-party reproduction, including surrogacy and egg and sperm donation.
The author would like to thank her former student, Jennifer Madrid, JD, for her invaluable assistance in preparing this chapter.
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- 1.
As of press time, IL passed its law Aug. 2019, NJ has pending active fertility preservation legislation, and AZ, CA, HI, KY, LA, MS, MO, NY and VT have inactive pending bills (see 7 http://www.allianceforfertilitypreservation.org/advocacy/state-legislation for more information).
- 2.
For an illustration of the changes made to the CT infertility mandate, see the CT General assembly website at 7 https://www.cga.ct.gov/2017/lcoamd/pdf/2017LCO07854-R00-AMD.PDF.
- 3.
Embryo and gamete losses, mix-ups, or damage cases are beyond the scope of this chapter; however, it should be noted that in the event of any such cases, the measure of damages for oncofertility patients who cannot readily replace any lost, damaged, discarded, or misused genetic material is likely to be higher than other scenarios. Both reported cases and damages amounts are difficult to identify since most cases are resolved through confidential settlement agreements.
- 4.
UPA 2017 has been adopted in whole or in part by Washington state and Vermont, is under consideration in several state legislatures and in April, 2018 was endorsed unanimously by the National Child Support Enforcement Association [NCSEA], Resolution Endorsing Uniform Parentage Act (2017), 4/26/18; for text, information, and updates see 7 http://www.uniformlaws.org/.
- 5.
See Astrue v. Capato, 566 U.S. 541, 555 (2012) for examples of state statutes addressing inheritance rights for children conceived posthumously.
- 6.
Examples of states with such legislation include: CA, CT (only as to birth certificates), DC, IL, ME, NJ, NV, WA; examples of states with similar frameworks developed through judicial decisions rather than legislation, include MA, CT (only as to agreements) and, to a less comprehensive extent, PA.
- 7.
Some examples include IL, HI, KS, MA and NC. However, every surrogacy case, even within a state, can be very fact and circumstance-specific, and parties should consult with experienced legal counsel before proceeding.
- 8.
Michigan Surrogate Parenting Act, § 722.857(2) (1988), “A person other than an unemancipated minor female or a female diagnosed as being intellectually disabled or as having a mental illness or developmental disability who enters into, induces, arranges, procures, or otherwise assists in the formation of a contract described in subsection (1) is guilty of a felony punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both.”; N.Y. Dom. Rel. § 123, “No person or other entity shall knowingly request, accept, receive, pay or give any fee, compensation or other remuneration, directly or indirectly, in connection with any surrogate parenting contract, or induce, arrange or otherwise assist in arranging a surrogate parenting contract for a fee, compensation or other remuneration, except for (a) payments in connection with the adoption of a child permitted by 7 subdivision six of section three hundred seventy-four of the social services law and disclosed pursuant to 7 subdivision eight of section one hundred fifteen of this chapter; or (b) payments for reasonable and actual medical fees and hospital expenses for artificial insemination or in vitro fertilization services incurred by the mother in connection with the birth of the child.”
- 9.
While the number is likely to increase as states consider adopting UPA 2017 in whole or in part, current states with statutes clarifying an egg donor is not a parent include: CA, CO, CT, FL, LA, ND, NY, OK, OR, TX, UT, VA, WA, WY.
- 10.
See, e.g., ALA. CODE §22-8-4 to 6 (authorizing minors at least 14 years old to consent to any medical treatment; authorizing all minors to consent to treatment related to pregnancy, sexually transmitted diseases, as well as chemical dependency); CAL. FAMILY CODE §6920–§6929 (authorizing minors at least 15 years old to consent to most medical treatment; authorizing minors at least 12 years old to consent to certain treatments for mental health, substance abuse, as well as the diagnosis and treatment of rape and of communicable diseases); MD. CODE ANN., HEALTH-GEN. §20-101-104, (authorizing minors at least 17 years old to consent to treatment of substance abuse, sexually transmitted diseases, pregnancy, contraception, and rape exams; authorizing minors at least 16 years old to consent to treatment of mental or emotional issues).
- 11.
For an example of such a parental request for an incompetent, adult patient, see Greer et al., “Case 21-2010: A Request for Retrieval of Oocytes from a 36-Year-Old Woman with Anoxic Brain Injury.” N Engl J Med 2010;363:276-83. The author has been involved in several such requests on behalf of minors and incompetent adults that were resolved without reported or published litigation.
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Q1.
What are the key differences in informed consent and contracts and the role each plays in assisted reproduction?
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A1.
Increasingly, embryo or gamete disposition decisions are viewed as contractual decisions, and agreements recorded between two patients may be more protective of their choices, and less likely to be subject to a change of mind, than a traditional informed consent process and document.
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Q2.
How is fertility preservation legally different for minor than adult patients?
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A2.
Given minors’ general lack of capacity to legally consent, parental consent must be limited to the minor patient’s best interests and protocols should offer more limited posthumous options than adults.
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Q3.
How should oncofertility patients considering surrogacy or other third-party assisted reproduction be counseled?
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A3.
Given the complexities and variability inherent in this process; physicians should stress the importance of patients relying on experienced, ethical, objective, and jurisdictionally appropriate legal professionals, recognizing that international arrangements add increased uncertainties around immigration, citizenship, genetic make-up, and health costs.
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Q4.
Legally, how can the consent process for adult fertility preservation patients be enhanced?
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A4.
Given advances in egg freezing, moving counseling and informed consent from couples counseling and consenting around embryo freezing, to individual counseling, decisionmaking, and consenting around the relative legal and medical advantages of freezing embryos or gametes will enhance future family-building protections.
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Crockin, S.L. (2019). Legal Issues in Oncofertility Treatment. In: Woodruff, T., Shah, D., Vitek, W. (eds) Textbook of Oncofertility Research and Practice. Springer, Cham. https://doi.org/10.1007/978-3-030-02868-8_28
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