Fertility treatment and family planning: what a lawyer wants you to know

Janene Oleaga, family formation attorney at Oleaga Law LLC, shares with us the legal issues you might want to consider before undergoing fertility treatment.

Millennial and Gen Z women are seeking fertility treatments in record numbers. According to the CDC, in 2019 approximately 12.2 per cent of women aged 15-49 had received some form of fertility treatment.

This statistic is steadily growing due in part to increased awareness of assisted reproductive technology and accessibility of fertility treatment options.

Whether you are pursuing IVF, egg banking, or other assisted reproductive technology, you need to give careful thought to the future of your genetic material. If you are pursuing fertility treatments in 2023 and beyond, here’s what you need to think about:

Egg cryopreservation

If you choose to cryopreserve your eggs to keep your future family building options open, you have countless choices regarding fertility clinics and egg preservation programs.

New fertility clinics like Kindbody and combination egg preservation/donation programs like Cofertlity offer a variety of options for women to freeze and store their eggs until and if they are ready for future use. Each programme has different costs and different policies regarding storage.

Review all consent forms carefully before moving forward and always consult with an experienced assisted reproduction attorney before entering into an egg donation arrangement.

Sperm donation

Successful sperm donation arrangements between single women and sperm donors, lesbian couples and sperm donors, and cis-hetero couples and sperm donors, are increasingly common reproductive arrangements. While you have the option to obtain sperm from a sperm bank, more commonly women are choosing to work with a known donor (also known as a “directed donor”).

Requirements surrounding the legalities of sperm donation vary from state to state and clinic to clinic and consulting with an assisted reproduction attorney early in the process can save you from complications down the road.

You and your donor will need a legal contract, called a sperm donation agreement, that clearly indicates your donor’s donative intent, sets forth the obligations and rights of each party, establishes you as the exclusive legal parent or parents of the child and protects the donor’s status as a donor only and not a legal parent.

Your legal contract can also address important topics such as compensation, confidentiality, and future contact.

Embryo creation

If you are undergoing IVF with a partner, whether with your previously frozen eggs or through a future egg retrieval procedure, the goal is to create viable embryos for use in your family building.

Before you give yourself the first shot of Lupron, your selected fertility clinic is going to present you with lengthy intake and consent forms. These forms ask important questions relating to your medical history and family building goals and also inquire as to what you desire to happen to your embryos in the event of the death or divorce of you and your partner.

You may be inclined to breeze through these forms without much thought, but your answers can have long-lasting consequences.

It’s expected that divorce and family courts will make custody determinations involving minor children and distribute marital property between divorcing spouses, but battles over who gets the embryos are becoming increasingly common. In New York, the court in Kass v. Kass, decided the fertility clinic forms completed by the divorcing couple was determinative as to which party would get the embryos.

While this strict contractual approach provides legal clarity, it gives a lot of weight to decisions made during the early stages of IVF when most couples are not adequately counselled and prepared to make decisions about their future reproductive material.

Other states have decided differently on the question of who gets the embryos, ranging from a balancing test weighing one party’s right not to procreate against the other party’s right to procreate, to a test of “contemporaneous mutual consent”, requiring agreement of the parties as to the disposition of the embryos.

While a prenuptial agreement can address how to classify and distribute your marital property, in the context of IVF an embryo disposition agreement has a similar purpose: avoiding lengthy and costly litigation in the future.

Couples with joint dispositional control of cryopreserved embryos can enter into an embryo disposition agreement, a legally binding contract, addressing the transfer of legal rights and dispositional control of their embryos upon some future event, such as their death or divorce, in addition to who would be a legal parent of any resulting children.

The legislature in at least one state (New York) has enacted a statute suggesting their desire for people to enter into these contracts to prevent tough decisions about procreative liberty from being made by a judge in the context of a divorce.

If you are pursuing IVF with your partner, it’s a good time to seek counsel and ensure your future right to procreate with your embryos is protected regardless of a change in your marital status or life circumstances.

Janene Oleaga is a fertility lawyer and reproductive rights advocate for LGBTQ+ individuals and couples navigating infertility. She founded her law practice, Oleaga Law LLC, to provide legal guidance in matters relating to surrogacy, egg donation, sperm donation, embryo donation and adoption. An advocate for pro-family legislation at the state and federal levels, Oleaga works with Resolve, Resolve New England and GLAD in support of legislation impacting the future of family formation law.