There is no doubt that modern medical advances are used today in ways that were never dreamed possible not that long ago. This is no doubt the case in the area of Assisted Reproductive Technology. Fertility treatments are becoming commonplace and the business of helping people who could not otherwise have children do so is an industry unto itself. The Society for Assisted Reproductive Technology reports that in 2012 over 165,000 fertility procedures were performed in the United States alone. In addition to helping people who only years ago would be considered infertile due to medical conditions conceive, the medical industry is also enabling people to have their own children well beyond their normal biological reproductive years.
However, there is fallout from these procedures that the medical industry seems not to have contemplated, and one which the law has not yet caught up to addressing: what happens when there is a dispute between the parties who used fertility to create a child? What happens to the embryos that are cryogenically preserved when the parties have a dispute as to whether they can be implanted, or the prospective parents separate? In the past few years, these questions seem to be increasingly ending up in our courts. Just this week, another highly-publicized case involving the question of who has the right to use embryos in a dispute between a divorcing couple began trial in San Francisco. Only a few weeks ago, the Illinois Court of Appeal upheld the right of a woman to implant embryos created with a former partner who wished to prevent her from using them. With each of these cases, the potential for new law to be created exists. Our firm has been at the forefront of this developing law, having obtained a change in the law through litigation allowing unwed fathers who used fertility to treatments to establish parentage based on their relationship with their children and now using that change in the law to represent other fathers who have been involuntarily cut out of their children's lives. We are also handling the most watched embryo case in the country. Stay tuned as we continue to expand our work in this cutting-edge area of the law and report to our readers the ongoing developments that will determine what constitutes a family and who has the right to create a family using these technologies in the future.