Undocumented Fertility Users

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Cindy and Robert are unmarried but live together. They wanted children for some time but they are unable to conceive. They go to a fertility clinic recommended by a friend and learn that Cindy is not producing enough eggs for fertilization. They are told that if Cindy undergoes an egg retrieval procedure and if they use in-vitro fertilization (IVF), they have significantly greater chances of conceiving a child.

Cindy and Robert go ahead with the procedure. They sign forms giving consent to the various procedures they are undergoing. The doctor treating them tells them that may want to consult a lawyer to ensure that everything is appropriately documented in terms of parentage. Cindy and Robert are euphoric over the idea that after all of these years they may achieve their dream of becoming parents. Fertility treatments are expensive and neither of them is then interested in spending even more money with attorneys. Cindy’s eggs are retrieved, Robert provides his sperm to the fertility clinic and success is achieved. Cindy becomes pregnant. During the pregnancy she starts to feel unsettled about her relationship with Robert. By the time she delivers their daughter, Cindy has decided that she is going to break up with Robert.

When it is time to leave the hospital, Cindy tells Robert she wants to stay with her mother while she adjusts to the new baby. Robert is surprised by this, but decides to go along with it considering what Cindy has just gone through and not wanting to create stress for the baby. A few days after arrival at her mother’s house, Cindy tells Robert she is not coming home and she is going to be a single parent. Robert, devastated by this news, now consults a lawyer. The lawyer tells him that he legally does not have rights to his child. He gave his sperm to a physician to inseminate a woman who was not his wife. The child was never in his home as Cindy took the child directly to her mother’s house and Robert has never had the baby with him at the home that he shared with Cindy.

This hypothetical demonstrates what can happen when parties don’t do what they need to do in terms of appropriately documenting their parentage arrangement before beginning the fertility process. There are significant risks that can result from the failure to agree, in writing and ahead of time, what each party’s rights and responsibilities are with regard to children that are being conceived through fertility by unmarried couples. It does not matter whether the couples are gay or straight, romantically connected or just friends. The failure to properly document the agreement to co-parent children prior to creating them can result in all sorts of problems for unmarried prospective parents. The Wall Street Journal reports that just over one-fourth of births to women of child-bearing age (15-44) were to cohabiting couples, the highest percentage on record and double that ten years earlier. (WSJ March 15, 2015). This trend is expected to continue and when examined along with the trend of increasing use of fertility and deferral of child bearing until later in life, more and more people will be exposing themselves to the risk of losing their children unless they take steps to address the issue before creating embryos. Physicians are practitioners of medicine. They can perform miracles in the field of reproductive medicine and help to create families in situations that in the past would have been considered hopeless. They are, however, appropriately concerned about the health of their patients and the medical aspects of the procedures being used. Any unmarried person contemplating the use of these procedures with another unmarried person must consult a lawyer prior to commencing fertility procedures if they want to protect their rights to, and the rights of, their future children to a parent-child relationship.

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