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Law and Ethics

Infertility treatment decisions should be made with awareness of applicable laws and with respect to ethical principles. Recognizing that the advances and options for infertility treatment are growing at a rapid rate, individuals are encouraged to become aware of all laws that may be relevant to their state or area in which they live.

Our mission, at Fertility Today Magazine, is to provide a trusted source of comprehensive and current information on all aspects of fertility and infertility. This mission follows from a basic ethic which values all human life and recognizes the inherent dignity and uniqueness of all people. Therefore we seek to provide articles that reflect the importance of human relationships and are written by individuals with both competence and integrity.

Some of the ethical issue to be discussed includes the ethical issues surrounding third party reproduction, infertility treatment insurance benefits, preimplantation genetics gender selection and the like.

We are committed to providing articles which reflect the highest ethical standards of patient care and information including a concern for the physical, psychological and spiritual health of the reader. We are also committed to proving articles which are scientifically valid and consistent with evidence-based medicine and current standards of care.

Legal Issues of Fertility

Contributed by: Melissa B. Brisman, Esq., LLC, 77 Market Street, 2nd Floor, Park Ridge, NJ 07656, Telephone, 201-505-0078, melissab@reproductivelawyer.com, www.reproductivelawyer.com

The advances in fertility technology have created a legal challenge in this country and abroad. At present, the law is playing "catch-up" with science and, as a result, reproductive law has emerged. In the United States most reproductive law is governed by the individual states and, to date, very few states have begun to tackle the current issues. Everyday we are finding an ever increasing need for clarity and consistency in the area of reproductive law in order to keep up with these scientific advances.

Previously, traditional surrogacy, whereby the carrier uses her own egg to conceive a child for the intended parents, was the only other viable alternative to adoption to aid individual(s) in creating their family. However, over the years, embryo, sperm and egg donations, and gestational carrier arrangements have become viable alternatives. The gestational carrier arrangement is one of the more complex options. Today, with the breakthrough of in vitro fertilization, the process by which ova is fertilized by sperm outside of the womb, it is possible for individual(s) who are unable to conceive and/or carry their own child(ren) to utilize a gestational carrier in order to have a child(ren) who are genetically related to the prospective parent(s) and not genetically related to the carrier. This opportunity to create families using the method of in vitro fertilization has become increasing popular and preferred by prospective parents. However, it has also created interesting legal questions and ethical ramifications in the legal community and society at large.

Until quite recently, it was standard to name the woman who physically delivered the child(ren) as the mother on the birth certificate(s) and, prior to recent scientific advancements, this made perfect sense. With the increasing advances and availability of infertility treatments, these laws are becoming more and more archaic and obsolete. In the past, an adoption proceeding was the only recourse for parents. Imagine having to adopt your own child! Unbelievable as it may sound, this is currently the law in some of the United States and the only option available to individual(s) who choose to use a gestational carrier to assist them in creating their family. However, many individual states and lower courts are starting to set precedent in cases where a gestational carrier is being used to assist individual(s) in having their own biological children. Pennsylvania, Massachusetts, Connecticut and New Jersey are the forerunners in adapting the law to the current landscape of infertility treatment. These states, albeit currently at the county level, are allowing prospective parents to pursue a "birth order" thereby allowing doctors and hospitals to name the child(ren)'s genetic and/or intended parents on the birth certificates at the time of delivery and eliminating the need to amend the certificates later. However, for the individual(s) who choose this path to build their families, the legal work begins well before the child(ren) is even in the womb.

In order to protect the interests of the prospective parents, gestational carriers, and donors, it is imperative that a legal contract be drafted and agreed to by all parties involved which outlines, in detail, the intentions of the parties involved. This is particularly important regarding issues of custody and responsibility for the child(ren) once born. When prospective parents embark on the exciting journey towards parenthood, it is easy to overlook and/or sometimes disregard the legal ramifications of the unique relationships in these reproductive arrangements. Don't be fooled into thinking that the law does not play a role in these relationships. It is of the utmost importance that prospective parents, carriers and donors seek legal advice from a seasoned law practitioner who is well versed in reproductive law. It is a very exciting time for prospective parents taking advantage of the advances in fertility treatment as well as the attorneys establishing the foundation on which the future of reproductive law will grow.

 

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