Our very own, Dean Masserman, recently spoke at the 2014 STARTART Annual REI Nursing Congress. Following his presentation, the REI Nursing Congress posed a number of insightful and provocative follow-up questions. So we thought it helpful to share the Q&A. And if you have any questions our experts can answer, please be sure to send them in!

A woman in Illinois married for the sole purpose of using spouse’s health insurance, but wants to do IVF with her boyfriend. Does the clinic have an obligation to contact the Husband? Or does the clinic insist the Husband to seek counsel to create a document protecting him against any offspring created with the boyfriend?

The clinic both has an obligation to contact the Husband, and to advise him to seek independent counsel, to protect against a claim of wrongful life or parental interference. It’s not the insurance that is the issue; it’s the presumption of parentage. The Illinois Parentage act of 1984 (750 ILCS 45/5) (from Ch. 40, par. 2505) states:

Sec. 5. Presumption of Paternity.
(a) A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage.”

In other words, if legal steps are not taken to terminate her current Husband’s parental rights, and finalize the parental rights of the boyfriend, an unintended parentage could occur which could create a family law dispute. He could be ordered to financially support the child. Or he could try to assert parental rights over the wife’s objections. Both create liability for the clinic.

Have you encountered any cases with the shared risk plans? Where patients get their money back if no baby? Do you think this is effective in promoting eset and reduce litigation cases?

The shared risk plans are a way to increase patient flow by attracting patients who could otherwise not afford surrogacy. However I don’t think it would promote eset or reduce litigation. In fact, the IVF doctors will not want to work for free and would be more likely to transfer more than one embryo to increase the chance of a pregnancy and thus not have to refund fees. As for litigation, there really are no suits arising from the inability to achieve a pregnancy or have a child. So I do not see the shared risk plans effectively reducing litigation.

Using the Supreme Court case K.M. v. E.G. example that was discussed earlier would you recommend that same sex couples (where one is the egg donor and the other the recipient/carrier) to file for legal adoption after the child is born to avoid cases like K.M. v. E.G.

All of the disputed parentage cases could have been avoided had the intent of the parties been clearly identified in writing at the time the embryos were created, and finalized before or after birth either by a Judgment of Parentage or an adoption. In the cited case, K.M. failed to finalize her parental rights. She had a biological relationship to the child. So an adoption in that scenario was not even be necessary. Using the logic of Buzzanca v. Buzzanca, parental rights are established contractually at the moment medical procedures are initiated to create the embryos. Of course laws vary from state to state and the finalization procedures thus vary as well.

For IUI insemination, no IVF, only IUI, should patient also sign a consent to agree on number of follicles/eggs, before IUI and before trigger shot?

Absolutely. If for no other reason, why not? Consents are designed to inform patients of all possible risks, side effects and unintended results, regardless of the likelihood. If you had for example 6 mature follicles, would you perform the IUI? I would recommend no because I think it would be an unsafe cycle with a high probability of multiples. By the same token if the parties insisted on going forward AMA, you would definitely want a signed consent to protect yourselves from future claims.

If your informed consent doc gives option A, B, C and patient added their own intention/decision with pen, is it legally advisable to accept that in the clinic?

Without a specific example, it is difficult to give anything other than a generic answer. As a lawyer I would never accept a handwritten amendment written by a party to the agreement without advice of counsel. You may be able to read it, and even understand the words, but you may not understand the legal implications of the amendment.

Our clinic has all third party cases use outside legal counsel. Our regular IVF cases (between 2 parties) is handled by the clinic by informed consents. Do these informed consents really hold up in court?

When you say “regular IVF cases between two parties,” I assume you mean that no surrogate or egg donor is involved. However, that does not mean that multiple issues could not arise. Based thereon I recommend that all clinics insist that patients consult with outside counsel and sign a document acknowledging that they have been so advised and done so. Recall the case I cited with Sherri Shepherd from “The View?” It was just she and her Husband who went to the IVF clinic and they both signed consents. Or Jason Patric? Again just a man and a woman in a relationship who went to the clinic alone and signed consents. Same with K.M. v. E.G.

If you have a Reproductive Estate Plan + sperm retrieved or a cryo sample released and a baby born do: 1) social security; 2) Insurance companies; 3) Veteran Affairs etc. honor it and give survivor benefits to those children?

The Reproductive Estate Plan (or “REP”) is designed more to address issues that regard the disposition of genetic property, as well as pre and post-birth child care matters in the event of death, incapacity, separation and divorce. Matters such as social security, insurance coverage and veteran affairs benefits, depend upon the establishment of parental rights, which we resolve outside of the REP. Once parental rights are established all state and federal agencies will honor it (with some exceptions), just as with an adoption. It is a valid and enforceable judgment.

Our center (PA) requires that all contracts be reviewed by our legal counsel. Could we be held responsible if the contract turns out to not adequately protect the parties involved? (Because we approved it) Our legal counsel’s interest in the contract is not that it is “fair, valid or enforceable” (and they state this in a follow up letter after the review process), but that our center, physicians, etc. are not parties to the private agreement.

First, if you recall from the presentation, I always recommended that your patients be referred to independent legal counsel of their choosing. As you clearly state, this is YOUR legal counsel reviewing the documents, so the counsel is not independent. Moreover, your counsel is reviewing the documents to protect your interests, not the patients. As such, if something were to go awry, for example, a claim of wrongful parentage, you would be sued and could very well be held responsible, because the parties were not required to consult with counsel who would explain the terms to them and act in their best interests. I know it can be burdensome and inconvenient, but in the end no one will be able to come back to you and claim they were not properly informed of the risks.

Would a clinic have any legal ramifications for providing outside monitoring for a clinic that has a donor under 21 years of age?

Much of that answer would depend upon which state or country the donor and clinic are located in. My answer would differ if both were within the United States, as opposed to one located in Canada for example. The age limit, among other things, ensures that a woman can legally enter into a contract, and understand the gravity of the decision she is making. However, I am unaware of any state or federal law in the states that allow reproductive technologies which specifically mandates that donors must be 21 years or older. It is simply a guideline and industry standard recommended by the ASRM and attorneys. We would nevertheless caution against working with women under 21 as an argument could be made that the clinic deviated from the accepted industry standard of care and common practice. And depending upon the circumstances of the underlying case and injuries, a finder of fact could potentially hold the clinic responsible.

What liability do nurses have with regard to witnessing consents?

The primary function of a witness is to verify that the person signing the consent was not doing so under duress or coercion, and to confirm their identity. If your witnessing is limited in scope to that you would not have any liability. The worst that could happen is that a patient could claim they signed under duress and the nurse could be called as a witness to dispute that claim.

If personhood for embryos became a law – – what would the effect be? Would all current embryos be grandfathered in?

For purposes of this answer I must make two assumptions: 1) that you are drawing a distinction between embryos and fetuses; and 2) that by “personhood” you mean the same rights as a living person would have. With those caveats I would state that the effect on the reproductive law industry would come to a legal standstill. At present embryos are created and destroyed, bought and sold, cryo-preserved and thawed, etc. The imposition of “personhood” would make all of those practices illegal. That said, there is really little chance of that occurring absent a monumental cultural shift in this country. To date they have not overturned Roe v. Wade, nor been able to sustain extending “personhood” status a fetus, let alone an embryo which is really just a collection of cells. Usually, in law and in medicine we talk in terms of viability outside of the womb when determining “personhood.” I think if one were to argue that embryos deserve “personhood” status, then why not the eggs and sperm that created the embryo? Then they would have to outlaw masturbation for men. That will never happen — too many male politicians.