The legal issues around fertility treatment and medical care

National Fertility Awareness Week is an opportunity to raise awareness of a range of legal issues surrounding the fertility treatment process.  

Part of the awareness week is aimed at fertility education. In this article, we seek to highlight the importance of taking legal advice at the start of your treatment journey in order to avoid potentially far-reaching problems further down the line.

We also look at how, in some cases, fertility can be affected as a result of negligent medical care. It’s important to know that if this happens to you, you’re not alone and we can help.

Why do I need legal advice when seeking fertility treatment?

Seeking legal advice when you're undergoing fertility treatment may seem an unnecessary expense at the time, given the cost of private treatments. However, legal advice is essential in order to minimise disruptive issues in the future and will secure the child’s place in the family. It is recommended that any person considering fertility treatment should ensure that they are familiar with the legal steps around the treatment, given the significant impact it could have both in the short and long term

There are a wide range of issues involving donor consent and legal parenthood on which you should seek specialist legal advice:

• Correct completion of forms - you must find out about the forms required if you are having donor eggs or sperm involved in your treatment. 
• Marital status – the marital status of everyone involved can impact on the outcome. If you are involving a clinic, they will help you to deal with any issues surrounding consent and the correct paperwork. 
• Donation outside of a clinic - if you are donating or receiving a donation outside of a clinic, you will need to be aware of legal parenthood requirements to ensure the child is considered the legal child of the right people involved. A co-parenting agreement could help clarify future arrangements with regard to the child.
• Informed consent - you must give informed consent to fertility treatment at a UK licensed fertility clinic and this requires a clear understanding of English law and its implications in practice for you, your future child and your donor if you use donor sperm or eggs.

If you don’t have treatment with a licensed clinic the situation is more complicated. There’s a risk that your donor will be considered a parent by law – with all the rights and responsibilities that brings. 

We appreciate that all you want to do is to have your family and so these matters can be overwhelming. Therefore, it is essential that you are fully aware of your own circumstances in terms of the legal implications for any decisions around parentage.

How does fertility treatment impact my employment rights? 

Part of awareness week centres on issues around fertility and the workplace.

It should be said that there is no specific statutory right to time off work for fertility treatment which can often be time consuming and stressful. However, your employer should treat your medical appointments for IVF treatment like any other medical appointment. 

Similarly, if you are written off sick by your GP due to the side effects of IVF, your employer should treat your absence as no different to any other sick leave taken not in conjunction with IVF. If you are at a medical appointment or off sick, you must make sure you follow your employer’s usual sick policy requirements. We can advise you fully on your legal employment rights whilst undergoing fertility treatment.

How can medical negligence lead to fertility loss?

When things go wrong at any stage of pregnancy, this is likely to have a traumatic effect on an  individual and his or her family. Moreover, when medical care goes wrong, the impact is all the more devastating.

There is an expected standard of care that should be given to all patients by doctors and nurses. The care that should be provided is not expected to be excellent but reasonable, acceptable and proper. When medical care falls below a reasonable, acceptable and proper standard, a case for medical negligence may be made out. We can help where substandard care impacts on your fertility meaning that you may have no choice but to spend thousands of pounds to try and conceive with assistance.

What are the common fertility medical negligence issues affecting women?

A woman’s fertility can be affected in a number of ways as a result of negligent medical care. In some cases, a woman may have to have her uterus (womb) removed because care that ought to have prevented damage to the uterus has been inadequate, not timely, or not been provided at all. In other cases, damage can be caused to a woman’s womb with the result that she may become unable to carry a pregnancy.

A common problem affecting the fertility of women is that of the substandard management of ectopic pregnancies. 

The drug methotrexate has been successfully used for many years to manage ectopic pregnancies. Methotrexate kills the pregnancy cells and any pregnancy tissue is then progressively absorbed: this way the fallopian tube can be saved. However, in order for the fallopian tube to be saved, the administration of methotrexate has to be timely. 

Negligent delay in treating an ectopic pregnancy with methotrexate could result in the loss of the affected fallopian tube. Where it is too late to use methotrexate, the affected fallopian tube can be removed. If a woman still has one healthy fallopian remaining her fertility may not be affected. However, if the negligently managed ectopic pregnancy results in the remaining fallopian tube having to be removed, the woman will not be able to conceive naturally.

What are the common fertility medical negligence issues affecting men?

A man’s fertility may also be affected by negligent medical care: delayed diagnosis and treatment of infection and diseases such as testicular cancer can cause infertility.

It is also not uncommon for testicular damage to occur as a result of medical negligence. This may result from a delay in diagnosis and treatment of testicular torsion (the twisting of the spermatic cord, which cuts off the blood supply to the testicle and scrotum). If conditions such as this are not diagnosed and treated early, there may be a risk to future fertility.

How we can help

Where fertility is compromised because of medical negligence, with the guidance of medical experts, we can help establish the full facts of the care given and provide advice as to how best to proceed in order to obtain compensation. Such compensation can include assistance with the costs of further conception attempts. 

You may still be able to conceive even after negligent treatment but where assisted artificial conception is sought, you may need legal advice as to what to be aware of before undergoing fertility treatment.

We understand that undergoing fertility treatment can be an emotional time for you not to mention one that involves considerable cost. The approach of our fertility law specialists is highly empathetic having been involved in the fertility sector at many levels, whilst ensuring that you receive clear advice across the full range of family law issues that you might encounter on your journey to parenthood. 

Call our specialist solicitors on 0808 231 1320

Tees is here to help

We have many specialist lawyers who are based in:

Cambridgeshire: Cambridge
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston

But we can help you wherever you are in England and Wales.