It is estimated that more than 8 million babies have been born as a result of in vitro fertilization (IVF) over the past 40 years. But for every embryo, egg, or sperm sample that eventually becomes a baby, there can be many more that are never used and which are simply sitting in storage. So that’s a lot of hopeful parents signing a lot of legal paperwork with clinics regarding their wishes, should they have remaining gametes (eggs or sperm), or embryos upon their death or divorce.
For most, the focus is on having a baby. Completing the paperwork and making choices for what-if scenarios in an imagined time far away is just an obstacle to get through. But when the clinic asks you to sign a consent form and make those all-important decisions — discard, donate to research, or donate to others — that’s the time to have those important conversations, do the research, and then do some informed box-checking. Here are a few legal pitfalls to keep in mind.
- How Binding Is The Clinic Form? That form that you are signing with the clinic is meant to protect the clinic. However, when a dispute arises as to the future of your reproductive material, the consent form is often the only written evidence of the intentions of the parties. So, for example, if you and your spouse split, the form may say that one spouse cannot use the remaining embryos without the consent of the other. Most courts are going to bind you to that agreement. But not always!
How Legal Intelligence Is Bringing In A New Era Of Litigation For Plaintiff Firms
Darrow is building a new category of legal intelligence — one that helps firms understand complex legal landscapes earlier, more clearly, and with greater confidence.
Some courts have held that it is against public policy to enforce a prior agreement between a couple that no longer agrees on the future of the reproductive choices. And in Arizona, a law was passed in 2018 that requires any judge presiding over a divorce to award remaining embryos to the party “most likely to bring them to life” — regardless of what the couple may have agreed to previously, in writing or otherwise. Further, in a number of disputes, consent forms — especially those looking especially form-like — have been ignored as merely a document for use by the clinic, and not an agreement between the couple that is binding on each of them if there is a dispute.
- Donating To ‘Research’ May Not Mean What You Think It Means. In this podcast interview with Melanie Mikkelsen — a mental health professional with decades of experience working with fertility patients — Mikkelsen describes difficult scenarios that come with left over embryos. She also explains that most clinics don’t have true Institutional Review Board (IRB) approved research options for donating gametes or embryos. For those clinics, the consent form option may include a subcategory under the discard option to donate for internal embryology training purpose and quality control. This is not considered research and embryos are then discarded. In contrast, Mikkelsen described the RENEW Biobank program, with Stanford Medicine, that allows people donating their reproductive material to medical research to choose their specific category of research. One category allows stem cell lines to be developed from donated reproductive material (although never used for conception of a child), the other does not.
- We All Die … Eventually. What Happens Then? Most fertility clinic forms have an option to determine disposition of your reproductive material upon your death. But … see point 1. The consent form may not function as a testamentary document — meaning it may not meet the state legal requirements for the distribution of property after death. I spoke with Nikki Patterick, a Colorado assisted reproductive technology attorney like myself, who stressed that it is important to express testamentary intent as to your reproductive material. In other words, actually get a will. In that will, you should be putting your wishes for your eggs, sperm, and embryos, separate and apart from the clinic consent form. In Colorado, a will must be executed in front of two witnesses in order for it to be enforced by the state. Most clinic consent forms are not signed in front of two witnesses, and therefore the state requirements for the disposition of property (a category most likely including reproductive material) may not be met. So get those wills done.
4 Ways Your Firm Can Build Economic Resilience
It’s the key to long-term success in an uncertain business climate.
- Beware of Abandonment. Of course, with the passage of years and decades, those who went through IVF often completely forget that they have stored embryos somewhere and may lose contact with the fertility clinic or storage facility. This is where you should pay close attention to what those consent forms say. If you lose contact and don’t pay storage fees, does the facility discard your reproductive material, or do something else with it? Can the clinic donate your abandoned reproductive material to others? Unlikely, but also not unheard of. And how long does the reproductive material have to be “abandoned” before the default disposition of the facility kicks in? Better to keep in touch with the clinic, pay your fees, and keep your wishes known. But be aware of what happens if time — and life — leads you to forget.
- Do I Need An Attorney To Even Sign This Form? Most forms will say that they recommend that you discuss the form with legal counsel. And it is definitely a good idea. See points 1-4 above. Even attorneys themselves going through IVF should consider discussing the forms and what the options and their ramifications mean, with an attorney specialized in the area.
In short, unlike that car rental agreement or the Apple Terms of Service, these are forms you want to take the time to read, for once. And, even better, review them with a knowledgeable attorney. The consequences of the unknown scenarios — with your genetic material — are too high to skip steps on this one.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].