Fertility problems? What you must know before you have IVF!

Hi, welcome to episode 106 of the Doctor podcast Sicard File Show, where we explore stories and expertise shaping healthcare and beyond. I'm your host as usual, Doctor Robert Sicard, by the way, please subscribe, follow, like, repost and share Doctor podcasts and especially this episode so that we can get more great guests in the future. Today we're discussing a very important medical topic that's in the news a lot lately, sometimes with heartbreaking stories, and that is fertility medicine, also known as IVF or in vitro fertilization.

But instead of interviewing a doctor today, which I usually interview physicians, we're honored to have an attorney, Andrew Rader, who's founder of the Radar Law Group and an expert in the medical legal aspects of fertility and IVF law, which are very important. Now. Andrew Rader is a trailblazer, seeing attorneys setting a higher standard in IVF law and he'll explain many important things to us. He's board certified in civil trial. This is a prestigious distinction awarded by the Florida Supreme Court to less than 1% of Florida attorneys.

So that's very impressive credentials. And he brings over 30 years of experience serving clients in Florida and New York. He's particularly renowned for expertise in IVF cases, addressing reproductive negligence, unfortunately, embryo destruction, unregulated aspects of the fertility industry, and we'll get deeper into that during our conversation. So Andrew, thanks very much for taking time from your busy day and schedule to join us and share your expertise on this important topic that people don't know much about but but really should know.

Thank you so much for having me. I very much appreciate it. All right. So tell us about your legal training background and and how did you become specifically interested and an expert in fertility and IVF law? So I've been a trial lawyer for about 35 years. I started off as a public defender in the Bronx, and from there I moved on to doing all kinds of personal injury and medical malpractice cases. But the way that I got most involved in IVF is a case that I had a few years ago. I had a couple who back in 2018 had four embryos frozen.

One of the embryos was non viable, so they gave permission for it to be destroyed. Well, lo and behold, in 2022, when they went to implant the remaining three, they learned for the first time that all four of them had been destroyed. And under Florida law, you couldn't get emotional damages for the destruction of embryos, even though it was possibly the most damaging thing that a person can endure. The reason was that, number one, embryos are considered property. And you can't get emotional injuries for loss of property.

Really #2 We have something in Florida called the impact rule, which means that if you're not physically harmed, you can't collect emotional damages. And obviously, in this case, the parents weren't physically harmed at all. But I was able to prevail upon a judge to recognize that if ever there was an exception to this rule, this should be it. And thank God he agreed with us and, and rightfully so. So. I've been so since that time I've been picking up more and more of these kinds of cases and I've I've spoken extensively and done podcasts like this and learned more and more about what is essentially an unregulated field.

So have you changed the law in Florida or, or only in that case did you get that? Well, it is only in that case because it's a trial level decision. But at the same time they didn't appeal it and there are no other cases in Florida that hold contrary. So it's persuasive authority, if not presidental authority, but it's hard to argue with the reasoning behind it. So I don't think that a judge or or another court is likely to go against what what that ruling was. Right, so let's start with the basics.

For those exploring various fertility options you've advised clients on the legal side of IVF. What are the first three steps you'd recommend someone take when evaluating fertility clinics or treatments and why these steps are critical? You know, I wish there was a really great answer to that, but I can give some guidance and, and the reason I don't I, I say that I can't give a great answer is because, as I said, it's an unregulated field. So it's not like I can give the answer. But here are some suggestions.

The first thing you want to do is make sure that the clinic is a member of SART SARTSART is the Society for Assisted Reproductive Technology. It is one of the one of two industry standard groups that don't regulate this field, but they do provide guidelines to that field. The second one is the ASRM, which is the the, which is the American Society for Reproductive Medicine. And they do similar things in that they provide guidelines to to doctors. And the third thing that you want to do with respect to the doctor specifically is make sure that they are board certified in REI, which is reproductive endocrinology and infertility.

That is a step that goes beyond a board certification in obstetrics and gynecology. And at least that way you know that your doctor has special training in that. So those are the first three things that I would make sure of. Check out the lab, check out the clinic, and check out the doctor. All right, that's important to know. Now, IVF clinics often share their success rates to attract patients. But how can individuals independently verify these statistics to ensure they're accurate and trustworthy?

And are there any red flags people should look for before going to an IVF clinic or center? That's a great question, Doctor Seikart, and I'll answer it this way. The, I mentioned SART a moment ago, the Society for Assisted Reproductive Technology, you can go on their website and you can actually print out a, a what was called the final clinic summary and it will tell you exactly the statistics for that particular clinic. But it has to be taken with the grain of salt because it is self reported. And as with anything that's self reported, you have to be a little bit concerned about its veracity.

But there's no better source to go to than to go on to the Sark website and to obtain that report. So that is probably the best thing that you can that you can do. But you also asked me about red flags. And one important red flag is if your doctor or the clinic is not a member of the SART or the ASRM or they have not uploaded their statistics, that might be an an indication that perhaps their statistics are not something they want to share. Right. So what's the address for that website for SART?

Sart.org. Sart.org. OK, now life changing events like divorce or death of a spouse can complicate tremendously IVF journeys. What happens to embryos in these scenarios, and how can legal planning help avoid disputes or heartaches down the road? That's a really great question and most, most states try to address that by requiring the clinic to have an agreement with the couple in advance that says in case of divorce, in case of death, in case of unforeseen circumstances, the embryo becomes the property of this other person.

Earlier we were speaking about embryos's property, and that's really one of the reasons that it came up that way is because somebody's got to own these embryos at the end of the day, or in the case of death or divorce. But. It raises a whole a whole list of other questions if they're considered people, because what happens if somebody stops paying for the cryopreservation, for example? What are the responsibilities of of individuals and the government in that situation? But that's beyond the scope of this podcast, I think.

Right. So from what you're saying, there's no federal or national law. It's it's different in every state, is that correct? There is none. It is property, just the same way as who's getting the dog in a divorce. Really. Wow, I didn't, I didn't realize that. That's very important. So you have to make sure in your contractor agreement with the doctor or the fertility center that all of that is specified in advance. Otherwise, later you've got troubles, right? Yeah. Not only that, I would also suggest going to an estate planning attorney or some other attorney who really specializes in this because the agreement you have with the doctor is going to be very bare bones and it's not going to it's it's not going to really speak to the nuances of what you want to happen to this embryo in case of certain situations.

So you really should go to somebody who can flesh out those. Details right now. In the last year I've read several reports in the media, they're becoming more and more common about IVF errors and mix UPS, couples getting the wrong baby and and things like that. Really heartbreaking things that I've read. How, how frequent are these things happening? Or is the media just picking up on it to get a headline and it's really an extremely rare event? It's, it's a rare event if you look at the entire number of of IVF cases there are in the country.

In the same way that a car accident, a serious car accident is a rare event for every mile that you drive. It doesn't mean that it's not important if it happens to you. And so and so, because there's no reporting, official reporting, there's no way to know how frequently this happens. But I will tell you that since I've become involved in this, our phones have been ringing. Really. Lost embryos, lost eggs, sperm implanted in the wrong, the wrong woman. We have a a case that involves an embryo implanted in the wrong surrogate.

There's so many different ways that things can go sideways in these kinds of cases that not only do we not know how frequently it happens, but we really don't know all the different ways that it can happen. And the problem is that they're almost always a result of human error. So you're not going to be able to go to a place and say, oh, well, it says here in the contract that we might put the embryo in the wrong person. That's not what happens. What happens is they have poor record keeping. They have poor inventory of whose egg belongs to to what couple and as a result mistakes get made.

Wasn't aware of that now. At what point in the IVF process should someone therefore consider consulting an expert attorney like yourself who's knowledgeable about this? Are there specific warning signs or situations where legal guidance becomes essential? I think it's really important for people to understand that even though this is the most emotionally beautiful event that could happen in their life, it is also an illegal event. And so the earlier you get legal advice, the better. Maybe just to read over the clinic contract.

You may find something in there that you didn't expect to find.

I have a case, for example, like I said, I have AI have an embryo that's implanted in the wrong surrogate. Happened here in in Florida. Well, guess what, when you read this the fine print, it turns out that in order to bring a lawsuit, you have to bring it in Mexico City. The clients never knew that, they never expected that and they never read the contract. Certainly if I'd reviewed the contract, I would have said this is a no go. You have to go to a different clinic or, or get that provision stricken.

But when you go in there and, and your eyes are so wide and excited and you trust your doctor and it's clean and people are nice, you're not thinking about the ways that a contract provision can come to bite you later. So not that there's necessarily going to be anything bad in there, but it's a good idea to have an attorney look at it in advance just to make sure. Right now, I'm surprised that the fertility industry is not adequately regulated from what you're saying. I know the FDA looks at everything very carefully and and closely in medicine.

So the FDA doesn't regulate IVF? It's actually the CDC. The CDC does have some reporting requirements, but they're they're very loose. They are, they're, they're not required. And so you never really know what you're getting in and in in a given statistic. And it's like any other industry. And when I say industry, I do mean industry. A lot of these clinics are owned by big money by by hedge funds and what hedge fund wants to be regulated? It's just like anything else that you just have to be careful.

If you do your due diligence, you should have no problem at all. So on that topic, are you better off doing IVF at a major academic Medical Center affiliated with the university? Large hospital where probably there's more oversight, more regulation, or at a small private clinic or or a doctor's office? What? What's your opinion on that? You know, I've handled medical malpractice cases from solo practitioners and I've handled medical malpractice cases from major medical institutions. The truth of the matter is that that malpractice, which is what this technically is, can happen anywhere.

So the important thing is to use your due diligence and to become as informed as you can and take it from there. Now, you mentioned hedge funds. I I've read that certain private equity groups also own fertility centers. Wouldn't it be better than to have this done at a major Medical Center where it's more of a nonprofit type of organization rather than a hedge fund or private equity group that are extremely interested in the bottom line there? They want to do the right thing, obviously, but occasionally mistakes occur.

What? What's your opinion on that? I don't think there's any evidence to show that one place is better than the other. On the one hand, yes, you have You may have a a for profit institution that's looking to squeeze every dollar. On the other hand, you may have a nonprofit that doesn't have enough dollars to go far enough. So choose your choose your poison. There again, the best thing you can do is try to do your own due diligence. Sounds like you should maybe hire an attorney every time before getting into this process.

Is that what you're saying? You know, I wouldn't buy a a house without having an attorney. I wouldn't write a will without having an attorney. When you think about having children, which is going to be the biggest investment emotionally, probably financially and long lived that you're ever going to have, it's probably a good idea to get a little advice. Upfront, right? Good idea. Now you've achieved some remarkable outcomes. I I've read, including several 7 figure recoveries for clients. What's your approach to ensuring cases involving deeply personal issues like embryo destruction or or implanting in the wrong person?

Or handle with both tenacity and compassion at the same time. My staff is, is is trained to understand the, the emotional issues here. But when I say that, even as I'm saying it, my staff is fabulous and they're compassionate people. And so they get it without any training necessary. When you have a case like this, it's a detail issue. You want to make sure that you have an attorney who is is well qualified, not only in the law, but in the emotional in holding your hand through a could be a bumpy and long process.

And to make them feel them, meaning your, your client as comfortable as possible while you pursue excellence in the way you do that. I can say that here at Radar Law Group, we work very, very hard to make sure that we are compassionate at the same time that we're pursuing excellence. That's great. Now you've mentioned wanting to teach and mentor young lawyers who may be interested in this. What key lessons about justice and advocacy and fertility law do you pass on to these young attorneys in in training and how do you see this field evolving?

It's funny when I say to myself, this field is in its infancy because it's so it's so apropos, but it, it truly is, it's, it's almost like like what's the law on, on artificial intelligence going to be? We don't know where this is going. What we do know is that we can be as prepared as possible going forward. We can educate ourselves on on legal theories. We can educate judges like I did on why it's just right to do certain things and why they should hold that. For example, the loss of an embryo is a profound emotional loss for somebody.

And, and the judges are human and they will understand that. And if they don't understand it, then there's legislative changes that can be that can be made. And what I teach my staff, what I teach young lawyers, is to recognize the gravity of the issues that you're dealing with and how important they are, but also how much joy these people came in with and how much joy we're still trying to achieve for them. And how how the important things in life are are sometimes difficult to achieve, but worth pursuing and worth striving for.

So we're always looking at the law and we're always advocating and advocating and advocating, but we're also cheering at the same time. That's good, remaining positive and compassionate. Very important. Now you've contributed to several publications shedding light on IVF errors and legal protections. What's 1 of the common misconceptions about fertility treatments that you wish more people would understand, preferably in advance? Well, we discussed it already. It's that it's an unregulated field and that and that it is up to you as a consumer of a medical procedure to do your homework.

And although the the ways of doing your homework are not perfect, there are some things available like we talked about earlier, like getting a report from Sartre. Right now you work in Florida and in New York, so people watching this know where to go now if they need help with this. But what do people in other states do? Especially because the laws vary from state to state, as you said. How do people find an attorney experienced in fertility and IVF law? Seems like it's similar to finding the doctor or the clinic with all the credentials that you mentioned.

What do people do to find the right attorney? Well, the first thing I can do is they can call me because I can Co counsel with, with attorneys in other states. Sometimes I can actually, it's called pro hoc in. In other words, I can become admitted in a, in a particular state for a particular case. So that's an availability beyond that I have I there are people who I can contact to try to learn more and to make sure that people will land on their feet. But I can be a a good resource and starting.

Point right so you have all the connections and and know how to help. These people I can find. I can find the people they need. They just have to come to www.raiderlawgroup.com to find me. Sounds great. Well this has been very informative for me. I I learned a lot because I thought this was highly regulated and turns out I'm I'm wrong. Who did I when I came into this? Right. So I, I appreciate you taking the time to educate us about this and, and I think it will be very important for people out in the public to, to know about this and be very cautious and proceed carefully.

So thanks very much for your time and knowledge. Thank you for your thoughtful questions. Thank you.

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