Lawyers should not give medical advice. Doctors should not give legal advice. But it can be helpful when each respective professional gives a "heads up" on the relevant legal/medical issues so that the patient/client can seek out professional guidance from a lawyer or doctor, as applicable. For examples, lawyers for many reasons, never should give medical advice and confuse their having a JD with a MD. However, it can be helpful to a client for the lawyer to provide a "heads up", on ensuring that the client understands the medical implications involved in the applicable process. For example, during the review of an egg donation agreement with an egg donor, the egg donor may find it helpful for the lawyer to ensure that the donor has discussed with the reproductive doctor all of the associated risks that are involved with egg donation prior to her signing the egg donation agreement. In my own reviews with Florida egg donors, I have seen situations of Florida egg donors not fully understanding or feeling comfortable with the medical process involved, and it is especially important that the donor understand the medical implications of an egg donation as in the egg donation agreement, she is many times holding the intended parents harmless and assuming the risk of the egg donation process.  Some egg donors are just presented with a document to sign prior to fully understanding the medical risks involved in the egg donation process and the lawyer for the egg donor can be the gentle breaks or reminder in the process to make sure the donor first understands the medical implications before proceeding. Similarly, reproductive doctors should not give legal advice to their patients about third party reproduction. Not only are they not licensed to practice law, however, there are many intricacies to third party ART that vary from state to state, person to person, etc. That being said, it is wonderful when a reproductive doctor or medical practice guides their patients to speak to a reproductive lawyer to better understand the legal risks involved in third party reproduction at the very beginning of the process and can point out "issue spotting" legal points to bring to a patients attention.  Some examples of legal "heads up" I have seen medical professionals provide are as follows:
  • At the start of any surrogacy process, for the intended parents to consult with an attorney in their home state (as a starting point), to understand surrogacy legal implications
      • Per ASRM guidelines: "Intended parents must have ongoing legal counsel by an appropriately qualified legal
        practitioner who is experienced with third-party reproduction and licensed to practice
        in the relevant state or states, or in the event of an international arrangement, in addition to any relevant states, in the intended parent(s)' home country"
      • Per ASRM guidelines, "Gestational carriers must have ongoing independent legal representation by an appropriately qualified legal practitioner who is experienced with gestational carrier contracts
        and who is licensed in the relevant state or states, or in the event of an international arrangement, in addition to any relevant states, the intended parent(s)' home country"
  • For international intended parents, recommend patients ALSO speak to an attorney in their home country about any legal implications and immigration/travel concerns
  • Recommend any patient to consult with a trusts and estates attorney (in home state of patient) for a will, nomination of guardian, power of attorney and other recommended estate documents
  • Recommend patients speak to an attorney about embryo disposition forms clinic provides if any questions
  • Recommend same sex couples for any ART procedure to speak to an attorney to determine if any additional legal steps needed to confirm parentage of the non-biological or non-birth parent
  • For sperm/egg/embryo donation, recommend all parties involved speak to an attorney to ensure they understand legal implications as either donor or recipient
  • Ensure that parties in third party ART perform ASRM recommended psychological evaluation, even if not legal requirement
Here are some additional legal considerations as stated in the ASRM guidelines regarding surrogacy, titled, "Recommendations for practices utilizing gestational carriers: a committee opinion"
  • Per ASRM guidelines:
    • "The genetic parents should be counseled regarding the risks and adverse effects of ovarian stimulation and retrieval, with such counseling documented in the patients' permanent medical records"
    • "Gestational carriers and their partners/spouses should be advised explicitly of the risks of the procedures and medications as well as potential complications of pregnancy, including the possibility of prolonged bed rest or hospitalization. This counseling should be documented in the patients' permanent medical record"
    • "Special consideration should be given to transferring a single embryo in an effort to limit the risks of multiple pregnancy for the carrier. After appropriate counseling and agreement by all parties, additional embryos may be transferred based on the age of the genetic parent, in an effort to improve the probability of pregnancy"
    • "Protection of confidentiality: Individuals participating in gestational carrier programs should be assured that their confidentiality and medical/psychological information will be protected insofar as federal and local statutes permit"
    • "Issues regarding screening and testing of the fetus during pregnancy should be discussed and the discussion documented in the medical record or legal contract between the carrier and the intended parents. Contingency plans for management of specific complications (i.e., abnormal genetic testing of the fetus, birth defects, etc.) should be discussed and agreed upon in advance of treatment. The possibility of pregnancy termination for pregnancy complications (in the gestational carrier or fetus) or for multi-fetal gestations also should be discussed before treatment."
    • Behavior of the gestational carrier: "Individuals who smoke, consume alcohol (>1 drink per
      day), or have other potentially harmful habits should not be considered as gestational carriers. Activity of the carrier (travel, exercise, diet, sexual activity, vitamin supplements, etc.) should be discussed between the parties
      and agreed upon in advance of treatment."
    • Compensation to the gestational carrier: "Compensation to the gestational carrier should be agreed upon in writing in the legal contract between the intended parents and carrier before any treatment begins. The amount of compensation paid to the carrier can be prorated based on the procedure(s) performed"
    • Quarantining of embryos: "All potential gestational carriers should be offered the option of cryopreserving and quarantining embryos derived from the intended parents for 6 months, with release of embryos only after the intended parents have been retested with confirmed negative results (see section on Laboratory testing of gestational carriers, 3.b.iv.1.a-j.). In the event of seroconversion of an intended parent after cryopreservation of the embryos, the ASRM recommends that the embryos should not be transferred into a gestational carrier."
    • Record keeping: "A permanent record of each gestational carrier's initial selection process, medical evaluation,
      eligibility, and subsequent follow-up evaluations should be maintained indefinitely. The clinical outcome for each cycle should be recorded. A mechanism must exist to maintain such records as a future medical resource for
      any offspring produced"