Web Exclusive: Find a Clinical Trial That's Right for You
July 09, 2009
Web Exclusive: Find a Clinical Trial That's Right for You
July 09, 2009
Web Exclusive: A Q&A with an Extraordinary Healer
June 30, 2009 – Kathy LaTour
Web Exclusive: Types of Kidney Cancer
June 25, 2009 – The American Cancer Society
Web Exclusive: Helpful Advice
June 25, 2009 – Elizabeth Whittington
Web Exclusive: Developing a Strategy
June 25, 2009 – Elizabeth Whittington
Web Exclusive: Searching for New Targets
June 23, 2009 – Elizabeth Whittington
Web Exclusive: When Survivors Should Exercise Caution
June 22, 2009 – Lena Huang
Web Exclusive: Fertility Guidelines Not Meeting Needs of Patients
June 22, 2009 – Elizabeth Whittington
Web Exclusive: A Peaceful Spirit
June 18, 2009 – Toby Bressler, RN, BSN, OCN
Web Exclusive: The Voice on the Other End of the Phone
June 18, 2009 – Dianne Ericson
Excerpt: Stronger
June 17, 2009 – Natalie Flechsig
Web Exclusive: An Infection Out of Nowhere
June 16, 2009
Web Exclusive: Solving a Medical Mystery
June 16, 2009 – Debu Tripathy, MD
Web Exclusive: Clinical Trials for CUP
June 16, 2009
Childhood Cancer Survivorship Programs
June 16, 2009
Chicken Soup for the Soul: The Cancer Book
June 15, 2009 – Kathy LaTour
Improved Care Needed for Patients Receiving Heart-Toxic Drugs
June 15, 2009 – Melissa Weber
Cancer Research Receives Infusion of Federal Funds
June 15, 2009 – Lacey Meyer
Resources
June 09, 2009
P.S. A Word About Implants & Some Unanswered Questions
June 09, 2009 – Kathy LaTour
How to Find a Cancer Trainer
June 09, 2009 – Lena Huang
Smarter Trials for Smarter Drugs
June 09, 2009 – Laura Beil
Sticker Shock
June 09, 2009 – Laura Beil
Resources
June 09, 2009
From Cancer Warrior to Basketball Player
June 09, 2009 – Deirdre Carey
Taking a Closer Look
June 09, 2009 – Karen Patterson
Surgical Strategies
June 09, 2009 – Karen Patterson
Hair Loss Snapshot
June 09, 2009 – Lacey Meyer
Weighing the Techniques
June 09, 2009 – Charlotte Huff
What About CUP Patients?
June 09, 2009 – Katy Human
Hard Times
June 09, 2009 – Joanne Kenen
Reconstruction Do-Overs
June 09, 2009 – Kathy LaTour
Fighting Fatigue
June 09, 2009 – Lena Huang
Disjointed Custody
June 09, 2009 – Charlotte Huff
No I.D.
June 09, 2009 – Katy Human
ASCO Updates
June 09, 2009 – Staff Reports
Interventions Needed to Get Survivors Moving
June 09, 2009 – Lena Huang
The Financial Advocate
June 09, 2009 – Kathy LaTour
Ovarian Cancer Survivors Course
June 09, 2009
Q & A: Prostate Cancer Screening
June 09, 2009 – Len Lichtenfeld, MD
www.armyofwomen.org
June 09, 2009 – Elizabeth Whittington
With a Friend Like Will Ferrell...
June 09, 2009 – Lacey Meyer
Program Keeps Tabs on Childhood Cancer Survivors
June 09, 2009 – Lacey Meyer
Revisiting the Seasons of Survival
June 09, 2009 – Kenneth D. Miller, MD
Prostate, Brain & Kidney Cancers
June 09, 2009 – Elizabeth Whittington
A Life Beyond Cancer
June 09, 2009 – Renée La Forest
Good Grilling
June 09, 2009 – Lena Huang
Medical Devices Face Stricter Regulations
June 09, 2009 – Jo Cavallo
All Is Not Lost
June 09, 2009 – Lacey Meyer
Letters from Our Readers
June 09, 2009
Message from the Editor
June 09, 2009 – Debu Tripathy, MD
Targeted Therapy: Hope or Hype?
June 09, 2009 – Laura Beil
Conquering Cancer & the Classroom
June 09, 2009 – Scott Williams
Reining in Renal Cancer
June 09, 2009 – Karen Patterson
Web Exclusive: Find a Clinical Trial That's Right for You
July 09, 2009
Web Exclusive: Find a Clinical Trial That's Right for You
July 09, 2009
Web Exclusive: A Q&A with an Extraordinary Healer
June 30, 2009 – Kathy LaTour
Web Exclusive: Types of Kidney Cancer
June 25, 2009 – The American Cancer Society
Web Exclusive: Helpful Advice
June 25, 2009 – Elizabeth Whittington
Web Exclusive: Developing a Strategy
June 25, 2009 – Elizabeth Whittington
Web Exclusive: Searching for New Targets
June 23, 2009 – Elizabeth Whittington
Web Exclusive: When Survivors Should Exercise Caution
June 22, 2009 – Lena Huang
Web Exclusive: Fertility Guidelines Not Meeting Needs of Patients
June 22, 2009 – Elizabeth Whittington
Web Exclusive: A Peaceful Spirit
June 18, 2009 – Toby Bressler, RN, BSN, OCN
Web Exclusive: The Voice on the Other End of the Phone
June 18, 2009 – Dianne Ericson
Excerpt: Stronger
June 17, 2009 – Natalie Flechsig
Web Exclusive: An Infection Out of Nowhere
June 16, 2009
Web Exclusive: Solving a Medical Mystery
June 16, 2009 – Debu Tripathy, MD
Web Exclusive: Clinical Trials for CUP
June 16, 2009
Childhood Cancer Survivorship Programs
June 16, 2009
Chicken Soup for the Soul: The Cancer Book
June 15, 2009 – Kathy LaTour
Improved Care Needed for Patients Receiving Heart-Toxic Drugs
June 15, 2009 – Melissa Weber
Cancer Research Receives Infusion of Federal Funds
June 15, 2009 – Lacey Meyer
Resources
June 09, 2009
P.S. A Word About Implants & Some Unanswered Questions
June 09, 2009 – Kathy LaTour
How to Find a Cancer Trainer
June 09, 2009 – Lena Huang
Smarter Trials for Smarter Drugs
June 09, 2009 – Laura Beil
Sticker Shock
June 09, 2009 – Laura Beil
Resources
June 09, 2009
From Cancer Warrior to Basketball Player
June 09, 2009 – Deirdre Carey
Taking a Closer Look
June 09, 2009 – Karen Patterson
Surgical Strategies
June 09, 2009 – Karen Patterson
Hair Loss Snapshot
June 09, 2009 – Lacey Meyer
Weighing the Techniques
June 09, 2009 – Charlotte Huff
What About CUP Patients?
June 09, 2009 – Katy Human
Hard Times
June 09, 2009 – Joanne Kenen
Reconstruction Do-Overs
June 09, 2009 – Kathy LaTour
Fighting Fatigue
June 09, 2009 – Lena Huang
Currently Viewing
Disjointed Custody
June 09, 2009 – Charlotte Huff
ASCO Updates
June 09, 2009 – Staff Reports
Interventions Needed to Get Survivors Moving
June 09, 2009 – Lena Huang
The Financial Advocate
June 09, 2009 – Kathy LaTour
Ovarian Cancer Survivors Course
June 09, 2009
Q & A: Prostate Cancer Screening
June 09, 2009 – Len Lichtenfeld, MD
www.armyofwomen.org
June 09, 2009 – Elizabeth Whittington
With a Friend Like Will Ferrell...
June 09, 2009 – Lacey Meyer
Program Keeps Tabs on Childhood Cancer Survivors
June 09, 2009 – Lacey Meyer
Revisiting the Seasons of Survival
June 09, 2009 – Kenneth D. Miller, MD
Prostate, Brain & Kidney Cancers
June 09, 2009 – Elizabeth Whittington
A Life Beyond Cancer
June 09, 2009 – Renée La Forest
Good Grilling
June 09, 2009 – Lena Huang
Medical Devices Face Stricter Regulations
June 09, 2009 – Jo Cavallo
All Is Not Lost
June 09, 2009 – Lacey Meyer
Letters from Our Readers
June 09, 2009
Message from the Editor
June 09, 2009 – Debu Tripathy, MD
Targeted Therapy: Hope or Hype?
June 09, 2009 – Laura Beil
Conquering Cancer & the Classroom
June 09, 2009 – Scott Williams
Reining in Renal Cancer
June 09, 2009 – Karen Patterson

Disjointed Custody

Legal issues can complicate fertility preservation.

BY Charlotte Huff
PUBLISHED June 09, 2009

Like many cancer patients who explore fertility preservation before cancer treatment, Adrienne Rathert didn’t have the luxury of much time to mull over options. The lump on her back, after a series of laboratory analyses, had been diagnosed as Ewing’s sarcoma, a cancer of the soft tissue. Her oncologist wanted to begin aggressive chemotherapy as soon as possible.

Rathert, 28 at the time, hadn’t considered the possibility of treatment-related infertility until her physician asked: Did she want to freeze some of her eggs or, alternatively, some embryos just in case? Her live-in boyfriend was supportive; so Rathert began hormonal injections immediately to stimulate egg production. “I’ve always wanted to be pregnant,” she says.

Together, the couple met with an attorney to hammer out the legal paperwork. In a spirit of egalitarianism, they settled upon joint access to the embryos, including related parental rights and responsibilities. The night before her eggs were extracted, though, Rathert recalls “really freaking out. I think I had doubts about my relationship at the time. I think my gut feeling was there—I just ignored it. I just went along with what made sense at the time.”

Attorneys and clinicians who work in the field of fertility preservation relay similar stories about patients and couples wrestling with reproductive and interpersonal complexities amid the time pressures and emotional strain of a cancer diagnosis. The legal issues at stake not only vary based on the fertility technique pursued, but also other factors, such as the state in which the patient lives. Above all, they say, fertility preservation is so cutting edge that the relevant case law hasn’t even begun to catch up.

“The good news is that more oncologists are recognizing fertility issues and presenting them to their patients,” says Susan Crockin, a Boston-area attorney who specializes in reproductive law. But the time factor can be significant, she adds. “So the legal issues are part and parcel of the choices that need to be made,” she says. “But they can certainly get pushed aside depending upon how urgent other (medical) issues are.” Only to potentially reemerge, she stresses, if the cancer survivor later decides to start a family.

Nearly two years after her 2007 diagnosis, Rathert is feeling physically strong following a year of chemotherapy. She’s had two post-chemo checkups with no signs of cancer.

The status of the eight embryos is a little more in limbo, at least in the Chicago woman’s mind. Five months after Rathert, now 30, began chemotherapy, the couple split up. “It was not a friendly breakup,” she says. Last year, she contacted her ex-boyfriend about changing the legal documents to provide her full custody of the embryos. At that point, he was resistant, she says.

In a given month, social worker Jill Trainer, MSW, LCSW, meets with 15 to 20 recently diagnosed cancer patients in her role as patient navigator for fertility preservation at Northwestern University’s Robert H. Lurie Comprehensive Cancer Center in Chicago. She describes a typical patient as a recently diagnosed breast cancer patient in her mid-30s who is engaged or married and had planned to start a family very soon.Commonly, the patients already know which technique they want to pursue and can be quite passionate about moving forward, Trainer says.

In regard to time pressures, men have an innate advantage, clinicians say. A sperm donation doesn’t require preparation and potentially many vials can be stored prior to treatment. For women, two to four weeks may be required for hormone stimulation and egg retrieval.

Fertility clinics will have their own consent forms, which can vary in specifics from clinic to clinic, Crockin says. They may differ, for example, in specifying whether a court order is required in the event of a couple’s disagreement. But cancer patients may need to develop a supplemental consent form, ideally with the assistance of an outside attorney experienced in reproductive law, to ensure their own unique circumstances are addressed, she says.

Most of the available techniques, including freezing eggs or sperm, are relatively straightforward legally because they involve material exclusive to the man or the woman, says Greg Dolin, MD, JD, who authored a soon-to-be-published article in the Santa Clara Law Review exploring legal issues related to oncofertility. The catch, at least for women, is that frozen embryos hold the greatest potential for a later pregnancy because they are easier to freeze and store than unfertilized eggs. However, frozen embryos also pose the greatest risk of legal headaches for the couple involved, he says.

To best protect themselves, both men and women—regardless of whether they are married at the time—should specify in writing what they want done with their genetic material (sperm, eggs, or embryos), including if either person should die, Crockin says. Be clear not only whether a spouse can use that material, but anyone else, including family members.

Also, it’s important that patients stipulate whether they want to be considered the legal parent if the child is either created or implanted after their death, Crockin says. Putting that desire in writing would be relevant to arguing that the child is a legal heir and thus eligible for Social Security and other benefits, although the final determination will depend upon state law, she says.

With frozen embryos, it’s more difficult to nail down all of the legal corners, given that two people are involved and their initial desires may shift over the years, attorneys say.

Legal documents can be drawn up prior to creation of the embryos, specifying who will have access, both while the cancer patient is alive and following her death. (Female cancer patients are more likely to pursue the creation of embryos, as men have the easier option of banking sperm.) Those documents can stipulate, for example, that the embryos should be the exclusive property of the woman, Dolin says. But if the couple later splits up or has a disagreement regarding use of the embryos, Dolin is not optimistic that such an agreement would hold up in court.

“I would imagine those contracts would be unenforceable in at least a number of states if not everywhere,” he says, “because our courts have held that the right not to become a parent is a fundamental privacy right that must be protected.”

A cancer survivor could potentially bring an additional argument to bear in such a dispute, Crockin says. Specifically “that she has lost all opportunity to recreate embryos. She can no longer produce eggs and be a genetic parent.”

Still, Crockin is similarly doubtful that such an argument, which she says has yet to be tested in the U.S. courts, would prevail given the legal system’s reluctance to force parenthood against someone’s will.

It might seem like it’s the wrong time to have these conversations. But they need to happen.

One way to bypass such legal conflicts would be to use an anonymous sperm donor to create embryos, Dolin says. “That, of course, can create problems within the marriage or the relationship.” But women have pursued that option, in part to limit later legal issues, says Clarisa Gracia, MD, a specialist in reproductive endocrinology, including fertility preservation, at the University of Pennsylvania Health System.

Rathert, who recently celebrated her first post-chemo menstrual cycle, hopes her existing quandary will become moot. But she doesn’t regret storing those embryos as a “last resort option.” In her next breath, though, she advises other unmarried women—despite a racing clock and muddled emotions—to raise some potentially uncomfortable questions with their partners. Among her suggestions: Is marriage in our future? Are you committed to me? What’s your vested interest in this? Do you want a child with me?

“It’s not easy,” she says. “It might seem like it’s the wrong time to have these conversations. But they need to happen. And that’s something that didn’t happen with us.”

Continue the conversation on CURE’s forum. >>
Talk about this article with other patients, caregivers, and advocates in the CURE discussion group.

Related Articles

1
×

Sign In

Not a member? Sign up now!
×

Sign Up

Are you a member? Please Log In