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Modern Fertility and the Law: Informed Consent Forms
by Richard B. Vaughn, Esq. and Deborah L. Forman, Esq., National Fertility Law Center, Feb. 26, 2010
If you are undergoing fertility treatment or using assisted reproduction to create a family, then at some point you will confront a stack of forms provided by your physician containing a mass of medical, legal and other information. In some clinics, your physician or a nurse/coordinator may review these forms with you. In others, you will be handed a packet and asked to review and sign them. Some forms require merely your initials and signature; others require you to consider options and provide instructions regarding your treatment. Either way, the task of wading through the mountain of information and making decisions about such important matters as embryo disposition can prove daunting.
While you may see the forms as a tedious obstacle to plow through as quickly as possible, the forms offer you an opportunity to review the information shared by your doctor at your own pace and to formulate questions that need further response; and before signing them, you should understand that these forms can have significant legal consequences.
The heart of the informed consent process is a detailed explanation of the procedure, prescribed medications, the related benefits and risks to the patient (intended parent, donor or surrogate) and children resulting from the treatment, and any alternatives to the proposed treatment.
The forms used by fertility doctors, however, often go far beyond just the medical matters and contain provisions that can have significant legal consequences. For example, forms covering IVF using donor eggs may include statements regarding the parties’ intentions as to who will be considered a legal parent; and forms authorizing cryopreservation (embryo freezing) will likely seek your instructions regarding future disposition of unused eggs, sperm or embryos.
Unfortunately, clinics do not always have forms that accurately reflect the wide range of family configurations utilizing assisted reproduction, and patients risk future legal difficulties by signing forms that do not correctly identify them, their relationship to their partners and to their future children. You also need to be aware of potential conflicts between these forms and assisted reproduction contracts you may have signed. A well-drafted surrogacy or donor contract, however, should contain a clause to protect you from such conflicts indicating that the contract supersedes the consent form in the event of a conflict between the documents.
Tips for Navigating the Forms
To get the most out of the informed consent documents and help avoid future disputes, keep in mind the following key points:
1. Informed Consent forms can have lasting legal consequences. All participants in the treatment should READ them thoroughly and carefully.
2. Do not sign forms that contain provisions that do not accurately describe your family configuration and your intentions.
3. Seek the advice of a fertility lawyer if you are unsure of the meaning or effect of provisions, especially those regarding parentage or embryo disposition. The added fee for a consultation may be well worth the expense for peace of mind and the opportunity to avoid costly legal disputes in the future.
4. Pay close attention to responsibilities imposed on you, such as to provide updated contact information or instructions regarding stored embryos.
5. Finally, the written forms should be a supplement to — not a substitute for — discussion with your physician. If you have any questions about information contained in the forms, ask your physician.
Richard B. Vaughn is the Managing Attorney of National Fertility Law Center (NFLC). As a lawyer since 1993 in Chicago and Los Angeles, Rich has assisted hundreds of clients with a large variety of contract, business, marketing, litigation, and corporate needs and brings a multi-disciplinary background to his role as NFLC's Managing Attorney. Rich studied reproductive and fertility law as a law student at Loyola University Chicago’s School of Law and is a proud parent of twin boys through egg donation and surrogacy. Combining his passion for starting his own family with his legal background, it is with great enthusiasm and pride that he assists NFLC in its nation-wide mission to provide legal services to clients hoping to build families through assisted reproduction. Rich's extracurricular pursuits are tied to the medical, health and wellness industries and LGBT advocacy. He is also an experienced fitness instructor, triathlete, and former paramedic.
Deborah L. Forman is Professor of Law and J. Allan Cook & Mary Schalling Cook Children’s Rights Scholar at Whittier Law School in Costa Mesa, California. She joined Whittier in 1990 and served as Director of its Center for Children’s Rights from 1999-2008. Professor Forman teaches Torts, Family Law and an advanced family law seminar that covers issues related to assisted reproduction. In addition, Professor Forman has been Of Counsel to the National Fertility Law Center since 2007, where she specializes in counseling physicians on informed consent issues and drafting forms that reflect the unique issues faced by fertility clinics and their patients. She also serves on the American Fertility Association’s Legal Advisory Council.