Infertility Treatment and the Law

In the past month, I have read about 2 cases where couples who had undergone infertility treatment ended up in court, contesting who had custody of the embryos. It got me thinking that technologically speaking, we have come so incredibly far in terms of assisted reproductive treatment since Baby Louise, the first "test tube baby" was born in 1978. When you look at it from a legal perspective, our gains have not been keeping pace. I should say right up front that I am not a lawyer. I am a licensed clinical social worker. I do not have a legal background or law school training and education. But as a social worker, I do have a good idea about the emotional turmoil that evolves when the proper legal safeguards are not in place regarding the rights of a child, a donor, an embryo, an adoptive child, and the biological and perspective parents and a conflict arises. The feelings of sadness, anger, betrayal, and loss of control that come out of these cases are overwhelming, all consuming, and life changing.

When we encounter the challenges of infertility and assisted reproductive technology (ART), we are very focused on doing whatever we can to become parents, whether it is through medical intervention or adoption. Many people don't even consider the legal aspects relating to this journey, which touches so many lives.

Questions such as, who are the legal parents in donor situations, surrogacy, and adoption can become extremely complex. There are multiple areas of law that fall into place in situations where, for example, an embryo is involved. Family, property, and constitutional law can all be applied in these cases. Different states have created different laws as new cases are brought before the courts. It presents a constantly changing landscape.

The good news is that there are now legal experts available to guide us, who have built their practices on reproductive law, adoption, and family building. They have a good understanding of the many pitfalls that arise when couples embarking upon building their families do not protect themselves with proper legal safeguards. These cases are never simple and when a court rules against you the results can be heartbreaking and life changing.

It must be said that in the vast majority of cases when people do choose whatever means they can to build their families, there are no legal issues that arise.

It can also be argued that getting the proper legal representation to guide you through this incredibly difficult process is almost as important as finding the best doctor, clinic, or adoption agency you can, in order to help you achieve the goals so important to you.

Anyone who has experienced infertility and begun treatment, or who has entered into the adoption process, knows there are unanticipated hurdles along the way. You want to be certain you are properly prepared and protected from a legal perspective if something unexpected occurs.

Good adoption agencies will mandate that you have legal representation as you initiate your adoption proceedings. Many good infertility clinics and reproductive endocrinologists will also advise you to look into getting legal support. Here in Chicago, we have a legal practice specializing in reproductive and family building law. All of the lawyers there have personally experienced infertility which gives them invaluable insights in advising and guiding their clients.

You can find a referral list of attorneys on the Path2Parenthood site @ listed by state. Use your network of friends and clinics or doctors as potential resources as well. These resources can prove invaluable for all concerned.

Iris Waichler, MSW,LCSW , has been a licensed clinical social worker for over 30 years. She has done workshops, individual, and group counseling with people experiencing infertility. She authored Riding the Infertility Roller Coaster: A Guide to Educate and Inspire which won 4 major book awards. Her website.

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