Feb 4 2016
By Shreeya Nanda, Senior medwireNews Reporter
Three articles published in JAMA Oncology highlight the legal and clinical care issues surrounding fertility preservation in US patients with cancer.
Oncofertility is a recently coined term “to address the urgent, unmet needs of young cancer patients…offered life-preserving but fertility-threatening treatments”, explain Teresa Woodruff and co-authors, from Northwestern University Feinberg School of Medicine in Chicago, Illinois, USA, in a viewpoint article.
They add that young women and men are concerned about the fertility consequences of cancer therapy, and not informing patients about later fertility issues prior to initiating therapy can lead to stress levels in the range of post-traumatic stress disorder during survivorship.
And fertility-preserving options for women and men continue to rise with breakthroughs in ovarian and testicular tissue freezing, say the viewpoint authors.
But in a special communication piece, Ehren Fournier, from Foley & Lardner LLP in Chicago, Illinois, USA, notes that these advances “raise complex legal issues for patients and clinicians.” For instance, disputes can arise between the oncofertility patient and the donor with regard to the disposition of cryopreserved embryos.
He thinks that the current legal approaches used by US courts to resolve such disputes – namely, the contractual, mutual contemporaneous consent and balancing approaches – do not answer to the specific needs of oncofertility patients as they are largely derived from marriage dissolution cases.
Fournier proposes a new approach, one where “before a donor, regardless of that donor’s relationship to the patient, may contribute genetic material to an oncofertility patient, that donor must affirmatively waive his or her right to prevent the patient from using the material in the future.”
Such an approach would not only provide an incentive to both parties to plan and discuss their expectations, but also give the oncofertility patient an opportunity to try other avenues in case of equivocation on the part of the donor, he writes.
But until advances in oncofertility render such disputes obsolete or the courts adopt the proposed approach, Fournier advises clinicians to educate themselves on the applicable approaches and to ensure that their patients receive legal counselling.
Editorialists Clarisa Gracia (University of Pennsylvania, Philadelphia) Susan Crockin (Georgetown University Law Center, Washington, DC, USA) agree that such oncofertility scenarios have inherent medical and legal sensitivities, and that precautions need to be taken, but they are not convinced that the waiver approach put forward by Fournier holds the solution.
While acknowledging the flexibility that such an approach would grant the female partner, the authors observe that “it is not clear how many male partners would agree to such a waiver, or, given the potentially limited time for counselling and deliberation, whether any waiver might be subject to a later challenge.”
Moreover, the waiver approach seems inappropriate for married couples and is not supported by current law and public policy, say Gracia and Crockin.
And they write in the accompanying editorial: “We believe that clear, comprehensive, and thoughtfully executed informed consents and separate cryopreservation agreements signed with fertility clinics, together with any additional agreements a couple may enter into between themselves, provide the best method to avoid future embryo control issues and disputes.
“In light of these continuing medical and legal developments, it may be time to update SART’s (the Society for Assisted Reproductive Technology) 2011 model consent documents for all patients and partners cryopreserving gametes and/or embryos.”
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