As both a health lawyer and a new mom I have a message to share: oncologists and young adults diagnosed with cancer need to have the fertility talk. If the doctor doesn’t bring it up, the patient should.
It is well known that cancer treatments can lead to infertility. That is the nature of the beast. But it doesn’t mean that someone fighting cancer can’t have children in the future. However, it may be necessary to take steps to preserve fertility in advance of treatment so that children do remain an option.
I have previously written for CKN about the liability of doctors who fail to disclose the risk of fertility loss. It is my belief that disclosing to a patient that he or she could become infertile is part of the informed consent process, and doctors who fail to disclose this risk should be held accountable. But this is not an area where being retroactive does much good. A patient can only sue after the fact for money; a court cannot revive fertility. It is far better for cancer patients and their doctors to instead approach fertility preservation proactively.
On this note, I have a few recommendations. Doctors treating young adults with cancer should tell them about their risk of fertility loss, and make a referral to a fertility clinic if the patient wants to explore this further. While this may delay cancer treatments, that is a risk some patients are willing to take. Further, it is ultimately a decision for the patient, properly informed, to make. It is understandable that an oncologist’s interest is to fight the cancer as quickly as possible, but patients are allowed to make their own decisions as long as they are mentally capable, even if others (including their doctors) think the decision is not in the patient’s best interests.
There can be a number of steps involved with fertility preservation, which is why it makes sense to begin this process as early as possible.
Women in particular have to go through medical procedures to retrieve eggs. Because frozen embryos have better odds once thawed than frozen eggs that are yet to be fertilized, some women choose to select a sperm donor and create embryos. Selecting the biological father of your future children is difficult even in the best of times. Again, all the more reason to begin the process early.
Some young women may happen to have a male partner who is willing to donate sperm for the purpose of creating frozen embryos. This is convenient but can become complicated down the road if the relationship does not work out. To anyone in this situation I urge you to read my article for CKN entitled Legal Considerations Before Freezing Embryos and to consider entering an embryo disposition agreement with your partner.
And to the young adults bravely fighting their own cancer battles, I encourage you to ask your family doctor, your oncologist and any other health professionals you encounter in your journey about your fertility. Don’t wait for someone else to bring it up because time may be of the essence, and your physician may not have this issue on his or her radar. If a treatment is proposed, ask if it might affect your fertility. If there is a chance of fertility loss, request a referral to a fertility clinic. Find out what risks you face if you delay cancer treatment to preserve your fertility. Educate yourself about your options. Be your own advocate.
We are lucky enough to have medical technology available that allows for fertility preservation. No one should be deprived of the opportunity to become a parent because a referral wasn’t made. So please, doctors and patients – have the fertility talk!
Enter the Canadian Oncofertility Referral Network here.
Lisa Feldstein is the principal lawyer at Lisa Feldstein Law Office Professional Corporation. She holds a B.A. from the University of Guelph and a J.D. from Osgoode Hall Law School. Lisa practices in the area of Family Health Law™, which includes providing advice on reproductive law and other health law matters. Lisa previously practiced health law with Canada’s largest health law boutique providing advice to hospitals and other health care organizations. She has also worked at two of Toronto’s teaching hospitals in the areas of research ethics and mental health law.
Lisa has been widely published, including in the Canadian Journal of Family Law, Hospital News and the National Post. She has presented on reproductive law issues at numerous institutions including the University of Toronto, Mount Sinai Hospital, Markham Fertility Centre and the 519 Church Street Community Centre. Lisa’s reproductive law practice is focused on drafting surrogacy and gamete donation agreements, performing declarations of parentage, and advising fertility clinics on issues such as consent, privacy and research. Lisa has been teaching negotiation at Osgoode Hall Law School since 2010. She is an executive member of the Ontario Bar Association health law section and a director on the board of BALANCE for Blind Adults.