How fertility consent forms can shape the relationship between clinics and patients

By Marina Christoforou and Ramona Livera

Scientific advances have created multiple ways to have a child and the number of people undergoing fertility treatment in Cyprus increases each year, creating the need to consider the legal implications that arise.

Legislation comes into play at every stage of any fertility process. At the heart of this discussion is the written consent that needs to be obtained by the interested parties. For patients, understanding what they are consenting to and the associated issues is critical to ensure that they have given their informed consent. Signing the form as a legally binding document is necessary whereby both parties, the clinic and the patient, are in agreement on all the steps that will be taken following the beginning of the fertility treatment.

Generally, in Cyprus although the law provides guidance regarding the legal procedure of medically assisted reproduction, there are no provisions to regulate the information that needs to be included in the consent forms. Consequently, there is a need to receive legal advice before signing the form since, as a form of contract, the consent form represents the main point of reference for both parties. Following in-depth research that has been conducted for the drafting of consent forms for a reputable fertility clinic in Cyprus, this article aims to touch on the most controversial and important legal issues in regards to medically assisted reproduction methods.

To begin with, the Application of Medically Assisted Reproduction Law of 2015 (69(I)/2015) (hereinafter referred to as “the basic law”) represents the legal framework for medically assisted reproduction methods that ensures respect for the freedom of the individual, the right to privacy and the desire to have children based on medical and biological data and the principles of bioethics. Accordingly, medical assistance is permitted only to those who find it impossible to have children naturally or to prevent the transmission to the child of a serious disease. The donation, supply, procurement, testing, processing, preservation, storage and distribution of reproductive cells, gametes and embryos intended for human in vitro fertilisation (IVF) should be in accordance with the provisions of the Quality and Safety Standards (Donation, Supply, Testing, Processing, Storage and Distribution) of Human Cells Law.

The basic law sets some pre-requisites for allowing the application of IVF methods. In particular, these methods are applied only to adults up to the age of natural reproductive capacity, set at the age of 50 for woman, although exceptions to this are possible. In addition, before proceeding with an IVF method, mandatory laboratory/biological testing should be carried out, in accordance with the provisions of the law.

In cases where a single person wishes to have a child using IVF methods, an application to the relevant board should made accompanied by an evaluation of a registered psychiatrist that includes an assessment of their willingness to become a parent and a relevant certificate issued in accordance with the provisions of the Prevention and Suppression of Sexual Abuse, Sexual Exploitation of Children and Child Pornography Law, which certifies that the single person is not included in the prescribed record of convicted persons for offences under that law. Notably, if the psychiatrist’s assessment is positive for the single person to have a child by IVF methods, the board has a binding authority to approve the application.

According to the basic law, there are general restrictions regulating the medically assisted reproduction. In particular, the basic law prohibits the creation of an intro embryo in advance, without the existence of a recipient couple using gametes from two donors for the purpose of making them available to infertile couples. In addition, the law does not allow the creation of an in-vitro embryo for research purposes. Furthermore, the law sets the maximum age to become a donor, currently set at 35 for women and 45 for men.

The law provides for clear safeguards to encourage these methods for couples and single persons who wish to become parents, while at the same time, by applying the relevant restrictions, it ensures that there will be no abuse of the law.

However, there are still gaps which need to be filled by the consent forms, especially over practical issues that arise once the process has begun. Specifically, one of the main issues are the costs of the clinic associated with any procedure undertaken, as well as any ongoing costs over the storage and/or freezing of gametes and embryos. The consent form should clearly state the amount that is agreed to be paid by the relevant party, as well as the need to pay any reoccurring costs within a specific timeframe, and the right of the clinic to take action when these costs are not covered. In addition, as the decision to proceed with any fertility treatment can be challenging both emotionally and physically, the consent form should expressly entitle the patient to withdraw consent, at a time when they are practically able to do so.

Before treatment can commence, the consent form should entail a complete and clear explanation as to what the treatment involves and the significant impact that the patient’s decision may have both in the short term and in the long term, including the risks and benefits. The consent form should explain the medical procedure, any medication that needs to be followed, as well as the chances of success in broad terms. Additionally, highlighting the practical outcomes concerning the procurement, storage and use of gametes (eggs and/or sperm) and the legal status of an intended child, parent, donor or surrogate is crucial.

Crucially, the dynamic nature and the rapid evolution of assisted reproductive technologies results in new controversial issues, including the concept of posthumous reproduction. Posthumous use is the use of a person’s sperm or eggs (gametes), or embryos created with their sperm or eggs, after that person’s death, in an assisted reproductive treatment procedure. Specifically, what has been a challenging question both legally and ethically is whether the partner of a deceased person is allowed to use after their partner’s death, the embryos formed from his sperm or her eggs. This question becomes more challenging when the consent form that has been signed before the death of the partner, does not cover this possibility. As a result, two immediate issues arise. Firstly, in the absence of an express consent by the partner before their death, it becomes difficult to interpret the deceased’s wishes. Secondly, in cases where a child is born after the death of their genetic parent, issues arise as to whether the child will be left with only one legal parent, leading to challenges about the child’s capacity to inherit from the deceased parent’s estate, as well as questions about the child’s identity.

The proper way to ensure that the reproductive rights of the deceased person are respected, is to ensure that the initial consent form that is signed by both partners before the beginning of any fertility treatment covers the case where one of them dies before the procedure is concluded, expressly stating their wish as to whether the process will be continued and therefore consenting to posthumous reproduction. Importantly, we consider that any issues regarding the legal status of the child will be properly managed following the implementation of the proposed bill that is currently pending. In particular, the purpose of the bill, the Children (Relationship and Legal Status) (Amendment) Law of 2018 is to create the rebuttable presumption of maternity and paternity in such as way as it includes a child acquired by posthumous fertilisation, as well as to regulate the cases where a child was born under the procedure of surrogacy or following artificial fertilisation with a donor. In this way, any child born by a posthumous reproduction, will likely be recognised under this proposed law by both of its parents, the deceased parent and the living parent.

Taking everything into consideration, scientific advances in medically assisted reproduction have prompted the need for the law to move along these advances to ensure that any legal implications arising will be properly settled.

Marina Christoforou and Ramona Livera are lawyers at Elias Neocleous & Co LLC