Infertility is usually defined as a condition in which a couple is unable to conceive or carry a pregnancy through to completion. It can also include diseases which are recognized by licensed physicians as causing conditions of infertility.
Infertility treatments generally refer to two types of general methods: the administration of drugs to make the couple more fertile; or, the use of such procedures as in vitro fertilization to allow conception and childbirth. The latter procedure can sometimes involve the use of a surrogate mother who will carry the couple’s child, which will be adopted by them after birth.
Infertility treatments can also include other procedures such as: diagnostic tests to confirm infertility, surgical procedures for assisting conception (such as removing a blockage), or transfers of organs or vital fluids.
Infertility treatments are also known as “Assisted Reproductive Technology” or ART for short.
As technology for infertility treatments expands, so does the scope of legal issues that are associated with ART. Some of the more commonly encountered legal issues in connection with infertility treatments include:
- Personal Injury from Infertility Treatments: Assisted reproduction is not without its risks. There have been some reports of injuries during pregnancy or to the child upon birth.
- Insurance issues: there are no federal laws that make insurance coverage for infertility treatments mandatory. The question becomes whether state laws require insurance for ART. Each state’s laws vary drastically when it comes to insurance requirements.
- Disclosure of private information: Especially in cases involving adoption or surrogacy, the use of private information of donors and other participants has been widely contested. Disclosure laws usually prohibit the unauthorized release of client information
- Wrongful birth: Treatments for fertility have sometimes resulted in unwanted birth defects or unwanted births altogether (for example, after the couple has already conceived the desired number of children).
- Denial of work benefits or wrongful termination: It is common for infertility treatments to require time off from work; this can present conflicts over employment terms.
If you have received infertility treatments and are experiencing any of the above circumstances, you might have possible recourse in a court of law, depending on the severity of your case.
In general, yes. Employers are prohibited from discriminating against women who take leave for pregnancy. This also includes time off for those who wish to become pregnant through Assisted Reproductive Technology treatments as well. Employers may not deprive workers of benefits or their jobs for taking pregnancy leave for legitimate instances of pregnancy. These employment provisions are usually covered in federal employment laws such as the Pregnancy Discrimination Act, the Family and Medical Leave Act, or the Americans with Disabilities Act.
Injuries sustained from infertility treatments are usually traceable to two sources: first, either the medical physician who rendered the treatments acted negligently, or, the drugs or other medicines were defective products. In any event, liability for such injuries will usually be based on a negligence claim (either a form of medical malpractice or products liability).
In order to properly recover damages for infertility treatment injuries, you’d have to prove that the responsible party owed you a duty of care; that they breached that duty; and that such duty actually caused measurable injury to you. In most ART cases, the difficulty lies in proving who actually caused your injuries. There are often several different professionals working on an infertility case, and the treatment can involve many different overlapping drugs and technologies.
If you have been injured, be sure to keep all copies of records of treatments that you have undergone. This includes receipts, and preferably a log of any medicine dosages you were given. Include names, dates, and detailed accounts of any instances that may be questionable. You should also keep records if you have disputes with an employer or insurance company. An experienced personal injury attorney can help you sort all the information needed to file a claim.