What is fertility law?

When people hear what I do for a living, they inevitably ask me - "what is fertility law?"

I decided to use my first blog post to explain what fertility law is.  Fertility law is the developing area of law dealing with the legal issues regarding building families through assisted reproductive technologies (otherwise known as ARTs).  Fertility lawyers are used in a number of situations, but are most often required when a person or a couple is using the help of a third party, such as an egg donor, sperm donor, embryo donor and/or a surrogate, to build their family.  Fertility lawyers provide legal advice and guidance about the legal framework relevant to the use of third party assisted reproductive technologies, and obtaining legal parentage for the children born through these technologies.  In addition, fertility lawyers provide advice to fertility clinics, sperm banks, cryobanks and other members of the fertilitiy industry.  For a very brief explanation of the current framework for fertility law in Canada, click here.


Most often, the next question I am asked is, "I didn't realize there was such a thing as fertility law.  Is there a need for that niche?"

My answer is a resounding YES! Although terms like I.V.F., ICSI, IUI, and surrogate may no longer be completely foreign to the general public, the legal issues surrounding them continue to be.  With respect to surrogacy arrangements, there are relevant statutes and various provincial caselaw of which a lawyer needs to be aware, especially as the law relates to obtaining legal parenthood.  Further, the issues related to the use of surrogacy as a method of ART are far-reaching in consequence and many may be overlooked without consulting a fertility lawyer.  For example, a surrogacy agreement should answer questions such as, what happens if the intended parents separate prior to the baby being born? Can the surrogate mother put pictures of the baby on Facebook or other social media sites? Not only is it wise to enter into a surrogacy agreement prior to the embryo transfer (and, in some provinces, necessary), but through the process of drafting the surrogacy agreement, the parties have an opportunity to work out many of the potential issues that could present themselves months down the road.  Most fertility clinics require that the intended parents and surrogate enter into a legal surrogacy arrangement prior to performing the embryo transfer. 

When in the process should I contact a fertility law lawyer?

As early as possible.  Not only can fertility law lawyers provide you with legal advice, but they are often a great source for resources.  Some fertility lawyers will provide free consultations.