Griffin hosts embryologist-turned-attorney, Igor Brusil, to discuss what he, as an attorney, believes is a bigger threat to the fertility space than the overturn of Roe v. Wade, and why. What implications could changing donor privacy laws have on your practice-even if you don’t practice in the state that overturns them? Could they extend beyond donor rights and result in an inspection of your business? Listen to hear one specialist’s opinion on Inside Reproductive Health with Griffin Jones.
Listen to hear:
Who is advocating for the release of donor information, including medical history.
What laws, changing in states like Colorado, could impact your practice (even if it is not in the same state).
Griffin press on whether Roe v. Wade has a larger potential to damage the fertility space than changing donor privacy laws.
Griffin question why no one is protecting the rights of the donors.
Igor’s opinion on what you, as a practitioner, can do to protect yourself and your business.
Igor A. Brusil, MSc, JD
Attorney at Law concentrating on Healthcare Law, Professional Liability and Civil Litigation.
Experienced attorney with a demonstrated success in the areas of healthcare law, regulatory compliance and commercial litigation. Skilled in contract law, healthcare law, risk management and compliance (HIPAA, GINA, FDA, CLIA, CAP). Extensive legal research and writing experience, including drafting pleadings, conducting discovery, and motion practice in state and federal court. Litigation experience includes all stages from initial pleadings, to court appearances, to written discovery and depositions, to a bench trial in matters ranging from contract disputes, fraud and professional liability. Additional experience representing healthcare providers before a state licensing board. Special interest in assisted reproductive technologies and in-vitro fertilization. Extensive hands-on experience managing and directing in-vitro fertilization laboratories and medical practices. Extensive hands-on experience in clinical embryology.
LinkedIn handle: https://www.linkedin.com/in/igor-a-brusil-msc-jd-9462801b2/
Griffin Jones 00:03
The biggest legal threats to assisted reproductive technology right now. Maybe it isn't what you're seeing in the news Most commonly, maybe it's something else. I don't know. I am more than happy to have you on the show. If you're from resolve or ASRM or any of the advocacy groups to talk about what's happening with regard to personhood. I'm more than happy to have that on. But I had Igor bluesil. Back on the show, to talk about a different threat to reproductive technology and reproductive therapy. Right now, you might remember Igor from coming on the show two years ago, he is an embryologist turned attorney. He practices in Illinois and Texas. And we talk about not just this change of what anonymity is able to be provided, but what's also being demanded from donors and where Igor thinks that there is exposure for providers for agencies, and where the discourse might be lopsided in the legislation that's coming down the pipeline. So we talk about future legislation as what's current as well as some common mistakes that entities might make, or areas where they're exposed. And I think you ought to hear him out on this. It sounds to me like the ASRM should be paying attention to this episode. Sounds to me like for the fertility providers Alliance should be paying attention to this episode, because there might be some big time threats, coming down the pipeline to donors to the entire process of third party reproduction that either limit its capacity, drive the cost up, reduce donors, just make it really hard for you to be able to treat patients. So I hope that you enjoy this episode with Igor bluesil. And again, if you want to have a subject matter expert, come on to talk about some of the other current legislation, please send them my way. Happy to have him on the show. Enjoyed this one with the bar? Mr. Bruce Orr, for those of you that really defend the Doctorate of jurisprudence and those professionals deserving that title. Dr. Brusil, In either event, Igor, Welcome back to Inside reproductive health.
Igor Brusil 02:42
From thanks very much. You just touched upon some rules of professional conduct. Yes, you can call me Doctor so long as you identify the diamond doctor of jurisprudence, so that it doesn't confuse doctorates and philosophy have to do the same thing. Um, I'm not sure if doctors of chiropractic have to do the same thing. I don't know the rules, but maybe they should be uniform. In either event, you're not here to talk about that you are here to talk about what you see, as some, some I don't know if radical change is the right word, but some very important things happening in the world of third party reproduction, specifically, with regard to I think one of the titles that you recommended for was the death of anonymity or do you know, do we do we have to give the concept of anonymity a burial servers or something like that. So I want to let you talk about that. But the last time you were on the show was a hit your, your legal
Griffin Jones 03:43
background and your embryology background gives you insight into this field that very few other people could have. And so it it was popular, but I am in and I have, I have followed with my resolution to have more people from the lab on the show. So we have more lab listeners probably than when you were last on but why don't we start with why you felt this concept of, of, of Anand, anonymity, and it's going away with so important to talk about?
Igor Brusil 04:18
Well, first of all, my proposed title was donor and unlimited guidance, 60 seconds. And I think it's important to pay attention to what goes on, not just in the in a petri dish or around the incubator or in the incubator, but things that surrounded the legal framework and legal guide got legal guidelines and standards of care. All of these things are relevant, particularly if you're a licensed healthcare provider, regardless of what license you hold, or if you're in business involved in procurement and and the use of donor gametes. Donor anonymity is a concept that pretty much exists only as a legal theory anymore. In reality, donor anonymity, I would even go as far as I say, it never existed. Because what's anonymous, you know, you if you want to make an anonymous monetary donation, the recipient doesn't know who you are donor sperm and donor eggs. The me bank knows exactly who you are. So in that sense, you're not an anonymous person. What it was, and is becoming more or less and less a reality is that the yummy procurement facility, let's say, a sperm bank, was contractually obligated not to disclose your identity to a third party,
Griffin Jones 06:04
as that part changed, so, so I think many people are now familiar with the concept that there's 23andme, there's social media, there's DNA testing, in across many different platforms. So anonymous might not be the best nomenclature, sometimes people use non disclosed, but Is that Is that done anything to change? What agencies? Or if if clinics are providing the gametes that what they're responsible for in terms of? Should they not even say that they're not? They're contractually obligated, not to disclose? B? Is that specific part changed?
Igor Brusil 06:47
Yes, it's changing. It has changed in several states, where donors have now a statutory, which is by law, by state law, right to either disclose their identity at the time they start donating, are not to disclose Washington, California, have that option written in the law, Colorado that recently passed a law was, as far as I know, that third state that passed a donor anonymity law, or at least a law that affects donor anonymity. Colorado does not give donors any option to remain unknown. They have to live with the knowledge that their identity will be disclosed at some point in time and the law has, Colorado law has different provisions when the disclosure must occur or may occur, who may request so on and so forth. And there are different duties imposed by that law on clinics gamete banks as they're called, or gamut matching entities. So yes, depending on where you are, you are now legally required to disclose to your dummy donor that their identity will be disclosed. So yes, the landscape is changing. And it's important for the industry to keep track of that and advocate for the industry's interests. And those interests are, how do we comply with all the regulations there are popping up here and there and they're all different. So if you don't keep track, if you don't advocate for your position, you will end up with a bunch of different laws in different states and could be 50. You know, the the logistical nightmare of complying with very different 50 laws would be fairly onerous. I think,
Griffin Jones 09:05
the regulations that are popping up, do they they across the board for assisted reproductive technology are particularly third party or are there specific laws popping up having to do with obligations to either preserve anonymity or counsel and to get informed consent that there isn't anonymity?
Igor Brusil 09:31
Again, each state by constitution is permitted to regulate healthcare in a way that the state legislators deem appropriate. So every set of legislators comes up with what they feel, or someone makes them believe that they feel is necessary. So in Washington, for example, the law applies to certain types of entities He's there licensed in that state. Similar in California, Colorado, reaches outside of Colorado, believe it or not. If you are a fertility clinic that provides that runs a cycle for residents or a resident of Colorado using donor gametes, Colorado Department of Health will come and inspect you, when the law becomes effective, if I'm not mistaken in 2025. And the legislature, that is
Griffin Jones 10:35
to say that they're there, they are claiming they have with their law, they have the right to enforce that. So that
Igor Brusil 10:43
that's the claim. Yes. legal minds can disagree. And that's good. It means that they're thinking
Griffin Jones 10:51
on that particular principle. Do you think legal minds will disagree? Do you think Idaho will say no, you're not coming? Oh, no, someone from the Colorado Department of Health isn't coming here. Do you suspect that legal minds will disagree? If there are state saying that we do have jurisdiction and other states? Is that is that Supreme Court just case is begging to be heard?
Igor Brusil 11:15
Well, it depends on who is willing to fight the fight and how far the party is willing to take the fight. It also depends on whether the next level court is obligated to take the case. So there are many wrinkles here. But yeah, Legal Lines will disagree unless they are on something. It's, it's an interesting concept. But just to put this in perspective, if no one challenges the ability to the ability of the Colorado licensing agency or Colorado State Department to reach out and inspect a clinic, pick a state New York. If you don't challenge that, here is what might happen. And I'm speaking not from my embryology background, but strictly from healthcare law. Background, many physicians that I've dealt with outside of the reproductive arena, don't realize how far the licensing board can go in its investigations. The licensing board, or any licensing board has very wide authority. And licensing boards can come after a person who's not even licensed in that state or the licensing board of your state can come after the licensee for violating a law, even if another state, so possible, I represented a physician who dealt with that situation. So it's not just the gammie things, or the agencies or the so called legal entities, it's real people who need to understand where the law is going and what to do with it.
Griffin Jones 13:10
And so is it almost always that the agency of enforcement is the State Department of Health? Are there sometimes other agencies within a state?
Igor Brusil 13:21
Well, it depends on each piece of legislation, which will define what department of that respective state will have the enforcement powers. In Colorado, I believe it's Department of Health and Environment. Don't quote me on that. But let's assume for the sake Well, what other agencies
Griffin Jones 13:40
are we seeing that aren't the Department of Health when you see it when you're seeing either a suit brought forth or an investigation brought forth? What other agencies are doing that sometimes from states that aren't the Department of Health and what areas do they typically have under their purview?
Igor Brusil 14:00
In my experience, I have only dealt with the licensing board, either responding to a complaint or investigating or just starting an investigation based on internal information, meaning there is no formal complaint. But donor anonymity and data about donors doesn't strictly fall under specific laws that address that issue. There are plenty of laws that control how identifying information is collected, stored, disclosed. Biometric laws are popping up left and right. A capture of donors, facial features, like a photograph may trigger states biometric Privacy Act, and in my experience, the Attorney General's have the right to enforce those particular provisions. So it may be that storing donor photographs in a particular state might trigger liability under the local biometric Privacy Act, something that I think few positions or entities think about. But it's there. So there are plenty of areas where collection of information disclosure, the rights of the donors, will will matter. It's an evolving area not necessarily intimately connected to reproductive technologies.
Griffin Jones 15:41
What do entities have to do to protect themselves? Well, you know, what lawyers do in these circumstances, they suggest they paint the worst possible picture that doesn't allow you to sleep for nights and then put forth an expensive solution toward compliance that limits delivering operations in some way. Is that Is that what you're suggesting? Because that's what I think of
Igor Brusil 16:09
not quite fine. We're a practice and IVF practice donor agency or a donor matching agency, I would do a comprehensive risk analysis, not necessarily strictly from the standpoint of what is my duty? What do I have to do to collect the information to whom I have to disclose? But what other laws might be triggered? If I maintain this information? Is there a conflict of laws, if one law says you have to disclose donor information, and the other law says, You can't disclose donors facial features like a photograph, without a specific consent of the donor? Well, you need to have some serious analysis where your fall and you may not be subject to multiple laws, because you fall under the exception or the facial features are specifically exempt. The type of features that you maintain, are exempt, but you can't just disregard that blimp on your legal radar. You have to follow up. And what needs to be kept in mind is that the push to remove donor anonymity. Completely eviscerated, is coming from the donor conceived community. As far as I can tell, that's the biggest voice in terms of additional regulation of the IVF and HRT industry, with regard to donor gametes, and if you read their positions and convictions, it's not just the donor identity that they seek out, or at least they claim that they have a right to have. They want medical information, not just of the door, but about the donor and about the donor includes family members. And I think time has come for the industry to sit down and address the elephant in the room. And the elephant in the room is that number one, the entire conversation is driven by one party that has very one sided goals. And if you really think hard without all of the political filters of political correctness, what it would take to achieve those goals, you'd realize that in reality, you'd have to pick up novel 1984 and add a chapter for Department of reproduction. Because the most vocal community that's driving this conversation, insists that children have a right to know not just the identity of their biological parents, but their medical history, their social history, their mental health history and those histories of several relatives. New York State is now considering a law it's in one of the committees that would require certain players in the IVF industry to collect information from the donor about the relatives, three degrees of counseling waited.
Griffin Jones 19:46
So when you're saying this is entirely lopsided, the conversation is on one end you're talking about from the donor conceived community.
Igor Brusil 19:55
And I'm not making any judgments on whether there are claims or not valid or or not? I'm taking them as they are. It's I'm not an ethicist. So I'm not going to make an a judgment. But if I take those claims, and I think, what would it take, for example, they very frequently complained that either clinics or gammak banks, or agencies don't verify the information that donors provide. My question is, and it's a serious question. How far do we want to go? There has to be some legal framework, it's one thing to ask for a driver's license. Okay. How do you verify that, to what length do you have to go do have to register with E verify, you may not be able to, because you may not qualify as a good bank to register. I have it on good authority that getting a fake driver's license is not such a session such an issue. College kids more than one have told me takes about half an hour, and we can go get some beer. So if if every step of the way, the question is, how do we verify how do we follow up, you're going to run into a situation that would require a full on dictatorial regime. For example, states require gamete banks to collect donor family history. New York goes as far as requiring names of doctors against past lives, proposed bill, names of doctors that donor has seen in the preceding five years. All right, fine. So you've got a list. Dr. Jones, Doctor, this just a brutal unit. How do you verify that? What if there is another physician who want the donor didn't disclose? So then the question is, okay, the donor lied? What do you do with that? Do you sue the donor for fraudulent misrepresentation? I mean, you have to literally take this to an extreme to it's,
Inside Reproductive Health 22:12
well, I guess that's going into contracts, right? It's going into contract with the donor that they that everything that they say is true. And then I suppose that it's going into contract with the intended parent, the intended parent, that we had the donor sign the contract that everything they said is true, but we cannot. But there's limits to how far we can verify what they've said is true. Is that going in both contracts?
Igor Brusil 22:43
It's not just contracts, contracts are good, you can write up what seems like a very solid contract. The question is, are you willing to enforce it? In other words, you can have all the promises made by the donor, given under oath. But what do you do if the donor breaches the contract? Are you willing to go and sue the doctor? I have to look at the entire process to come up with a reasonable solution, not just follow what one side is promoting? And then you end up with laws that are you just go well, how do you comply with that?
Griffin Jones 23:23
I'll ask it a different way is the contract is it wise to or necessary for the contract with the recipient, the intended parent to, to declare the limit the limits to the enforcement,
Igor Brusil 23:39
I have to be, again, if I were someone like Springbank, let's just use the word spirometer. And because it's, for some reason pops up in my head for the sooner than any other term. If I run a spring, I would have to tell my customers who by donor sperm, we can verify what the donor is telling us. And at this point, you can't because there are legal limits to what you can compel the donor to do. You can't just waltz into a doctor's office and say, look, the data of our donor is being seen here. We'd like his medical history because the donor would not cooperate. You just can't do it. And there are other developments that in my judgment would drive the decision making process of if I were the sperm bank, for example. There are two very relevant or decisions one in Oregon where donor sued the sperm bank on the claim of fraud was the only one surviving so the court permitted the claim of fraud to go forward and the multiple lawsuits and In Georgia, filed by receiving parents alleging that the sperm bank did not verify certain information that the donor provided. And what those two cases telling me is that the courts are doing what, frankly, is a very logical conclusion. They're treating donors and receiving parents as consumers. And they're applying very generic fraudulent misrepresentation, legal theories to make sperm banks liable. So if you tell someone, this is what we do, but we don't actually in reality, you could be liable. If you don't fully disclose what you do, or what you have to, you also could be liable. So you can, this coin certainly has two sides. On the one hand, you have to tell the donor in my judgment, that donor information will be disclosed to someone pursuant to such and such law, you can I think it's insufficient just to say, well, it's all confidential, but we might have to disclose it pursuant to law doesn't tell the donor anything. On the other hand, you have to be truthful with the receiving
Unknown Speaker 26:31
parent parents and say, we are limited in our ability to verify. And at some point, someone would have to take responsibility, but
Igor Brusil 26:45
it's a separate conversation, I guess, to what extent a sperm bank would have to go to verify again, I just don't know if there was if there was a good answer, because there are privacy laws that are they would have to be completely demolished. There are laws regarding access to donors information, the history that would have to be demolished. So sperm banks would have to be given unfettered access to whatever they feel they need to find, in order to satisfy this one sided drive for disclosure information. So it's, it's a tough situation.
Griffin Jones 27:29
Is your bigger concern at this time is that entities are too exposed within the current framework? Or is your biggest concern of the legislation that may pass that may make it untenable to either operate or to comply
Igor Brusil 27:50
with both, frankly, both. So let's just assume for the sake of their argument, no state has passed any laws regarding mandatory disclosure of donor information or mandatory collection, or mandatory storage and maintenance forever? Let's assume those laws don't exist. You still have, in my opinion, legal responsibility, to be honest with everyone involved. Just a couple of days ago, when I was preparing for for the podcast, I opened up a couple of websites that belong to very notable sperm banks. And I looked at the description of services for donor sperm, and one bank says, sits 100% confidential and just flat out 100% confidential? Well, if you're splitting legal hairs, and what you mean by 100% confidential, is that we, the sperm bank will not tell the parents well, maybe, but not in the current client. You just, I wouldn't make such a statement that I looked at and other ones similar commitments to ironclad anonymity. I mean, we in no way no how nowhere. And then at the bottom, well received bins may look you up on line. All right. Again, if I were driving the bus, I would take greater precautions, they would be open.
Griffin Jones 29:32
When does advertising like that present a liability even if the contracts are airtight? So if advertising such as what you just described is contrary to what's in the contract. Can the person argue well, I didn't have consent because unlike this 18 page document that I was supposed to read through and sign everything is right here right on the homepage. It says we have ironclad enemy, an enemy. So how much does or does not advertising like that jeopardize a really well drafted agreement?
Igor Brusil 30:08
I'll give you a typical answer you'll hear from most lawyers, it depends. And it depends on several things. Number one, statements that people make or entities make are subject to tort legal liability theory, which is different from contract liability. There's a completely different legal theories, you can pursue tort claims and contract claims at the same time. There are different recoveries, it's a very complicated and convoluted conversation, but Geopoint Yes, you can get in trouble for advertising one thing, even though your contract is bulletproof, and I'm using Dr. Evil's bullet proof contracts are not bulletproof. That's that's just sad reality. So yes, you can. Absolutely.
Griffin Jones 31:07
With regard to entities, who do you think is generally more exposed right now? does it tend to be providers? Or does it tend to be agencies?
Igor Brusil 31:18
I think it depends on who has the greatest interaction with the donor who communicates with the donor more than the other party. So let's assume for the sake of their argument, you're a sperm bank and my state of Texas, okay. And you collect sperm here, you process it to deal with local donors, and you're ship it to a clinic in my former state, Illinois. Alright, so the Illinois clinic, most likely will have no interaction with the door. Probably up. So their responsibilities, their duties and risks probably will be less, but it doesn't mean that someone in Illinois wouldn't say, oh, it's donor sperm, it's 100%. Confident in serum, there is no way you know, this could come out? Well, it could. It took me literally five minutes yesterday, to find out how I can plug in a photograph and find matching or similar images on multiple social media websites. Think a life has changed and 2520 years ago, most people didn't have substantial social media presence. Today, if you're a professional, and you don't have Facebook, LinkedIn, Instagram or some other outlet, your marketing specialists will tell you you're a dinosaur. So yeah, maybe there risks are everywhere. Which brings me to my suggestion that you have to sit down and conduct a professional, thorough analysis of your risks and take it from there. The answer will depend on your risk tolerance or risk aversion.
Griffin Jones 33:20
We're talking a lot about consent in this episode, and what might threaten informed consent. I'm not an attorney, but you should talk to your attorney about what informed consent is provided by engaged MD in a way that isn't when you just slide a stack of papers to someone is, are you better protected by having someone sign a stack of papers with a lot of language that they don't understand, or you better protected? When it comes to informed consent? When the recipient has gone through video modules that sign off on each one, they take a quiz, who's the more informed party in that situation? Again, I'm not a lawyer, but why don't you talk to your lawyer about this so that you can get an engaged MD If you're now in the minority of practices that isn't using engaged MD often I talked about it for workflow and for reducing burden to staff it does all of those things to also might protect you a lot more and remove some liabilities. So you want to look into that go to engaged md.com/griffin You got to spell my name right. It's Griffin. My name has never been Griffin. It's never been Griffin. It's engaged md.com/griffin So you can get a free workflow consult and ask them about some of these things. Ask them about this particular phase. With informed consent use this as an opportunity to get through Have a little bit of free insight as to what other practices are doing. Go to engage them d.com/griffin Get your free console do clinics. And that is said to providers and agencies tend to have the same, do they tend to make the same mistakes? Do they tend to be exposed to the same? Like the very same risk? Is there some differentiation between the two? Or does that not matter because it has to do with the, the intended parent and the donor.
Igor Brusil 35:37
I think the risks are similar, they may risk for someone who constantly interacts with the donor to follow up on a red flag in the donors history, that risk would be the greatest for for this bombing that deals with the donor compared to a fertility clinic that's just using the donor. And speaking of risks, The New Yorker proposed legislation would require a physician medical director to issue a written certification, then he or she basically certifies whatever the physician certifies. So it's it's a different level of liability when you have to do something in writing pursuant to, to state law. So the risks are going to be there. But they may not be as great for one party, as opposed to the other. So that would be my, my answer. If it makes no sense,
Griffin Jones 36:49
my audience is going to be at least a part of my audience is going to be ticked off that I haven't covered the implications of the potential Roe versus Wade overturned. And then what's happening in in State House is often related to that. And that I that I brought you on to discuss a different reproductive legal issue first, I know that's going to take a couple people off, and I'm one man people that I've got to show and it's part of what I do to run my business like everybody else. I'll get to it. If you send me some experts, and we could even possibly have your back on to talk about that. But I want to ask you EEG or do you view what's happening? Or has the potential what's happening in state houses right now with regard to personhood, possibly connected to the potential Roe versus Wade overturn as a bigger threat to assisted reproductive technology right now, or do you consider this concept of anonymity? anonymity, a bigger threat?
Igor Brusil 37:53
I never thought of it that way. I think anonymity would probably be far more acute issue for me if I were to decide which one is which personhood bills have a history of not being passed. abortion debate involves termination of an existing pregnancy. Whereas the IVF industry does not deal with an existing pregnancy. It deals with a pregnancy that doesn't exist.
Griffin Jones 38:28
They would say, well, but people are very worried that laws that talk about embryo is a person then put our AI is in jeopardy. Whoa, are you you can't CryoFreeze people, you can't discard people. And so that puts all of IVF at risk?
Igor Brusil 38:50
Well, I certainly understand the worry that people have I think I wouldn't be that's my personal opinion. I'm not that much concerned at this point. Having seen the legislation that's already in place. I can certainly imagine arguments if, for example, the state law declares a legal person from the time of conception. As an embryologist, I'm thinking okay, when does that start? I can see when is 10 minutes after I did XE is an hour at which point if I discarded the injected o site. Did I just violate the law? No. It's just to take it to to an extreme, but I'm not that much concerned. But it anytime legislators start writing things. You have to be concerned no matter what they write, and I am personally concerned out just about anything. When I was a law student, I was involved in educating Illinois legislators on the issue of genetic privacy, because there was a desire to create a statewide health information exchange. And there were different laws governing different types of medical information, genetic, mental health, everything else that made that project, questionable, and I did a presentation for for the legislators. One was yawning. The other one picked up the phone, cell phone and walked out during the presentation. The other two looked as if, you know, they were just ready to walk out and expressed absolutely at least their facial expression it was, who cares? So you're certainly I think you're gonna run into legislators who write things for the sake of writing. As sad as it is plenty of laws that I've read on many subjects, you wonder who wrote it? And so that's, that's where we are, unfortunately, when it's not just limited to abortion or IVF or anything else.
Griffin Jones 41:20
I don't hear this this topic coming from the reproductive health advocacy group nearly as much the topic of anonymity and the obligations they're in. I'm not saying they're not talking about it. And this could be my own limitations. But I'm but I'm not hearing I hear lots of concern. And not just from this most recent Supreme Court concern, but from ever since I've been in the field, the advocacy has always has had to do more with at least when we're talking about reactive Agassi, reactive ag advocacy, or perhaps protective advocacy is a better word. Yeah, having to do with legislation that touches abortion. I don't really hear people talking about making sure that we're educating legislators about the actual constraints of anonymity and and what's involved in delivering, are we missing something as a field across the board?
Igor Brusil 42:31
I don't think certainly you're not missing anything. I have it on good authority that you're thoroughly plugged in the industry. And I think you just nailed it. On the head. This now. I looked at the minutes of the meeting, held in Colorado when the Colorado Act was was being debated. And there were some attorneys, local attorneys very well known in the charity space, who, according to the minutes testified on their own behalf. There were a donor conceived persons who testified on behalf of the entire donor conceived community. They were ethics law professors, who testified in favor of the law. I did not see a name that said Dr. Such and such, testified on behalf of name, you know, a physician interest group, or such and such person on behalf of name and interest group. On behalf of sprinklings. There may have been one sperm bank manager or an owner I don't recall, but they I think you are onto something very important. There is not much discourse on this issue. There is not much debate, and I don't know if there is some reluctance to even voice an opinion that doesn't jive with the one sided narrative, for fear that it might be what are the terms they're common these days a microaggression or something that you're insensitive, or you're ignoring the fundamental rights of donor conceived persons? Again, I'm not making any judgments. If they feel they have a right. Let's have a discussion on how that right could be implemented for lack of a better word. What I would like to do, frankly, now that we are discussing it, I wonder why only donor conceived persons should have that right but let's assume they they should be donor conceived. Just read a half an hour ago when I'm slightly more just to confirm my my suspicion. One of the very vocal groups says that don't often see persons have a fundamental right to know the identity and the medical history with their parents. While they don't conceive, it may sound like a silly question to you, as most of us well, it's my dad, I know who he is. No, you don't. You assume that you do. But chances are, at least I wasn't present. When the gametes were in the intimate vicinity. I wasn't aware of my birth, I thoroughly know I could be adopted, my parents never told me. But by the same token, the donor conceived persons is the term themselves are getting statutory rights to demand medical history of people they don't know, donors and their relatives. I don't have such a right. I can't just compel my parents, my parent, one is deceased, to disclose their medical history. I can't do it. My it's a personal issue to me, my father passed away when I'm thinking and an illness that had genetic component. I'd like to know what it is I can't do anything about it. Because he signed an authorization basically saying don't disclose to anyone, and to start. So if children have a right to know everything about their biological parents, including their medical history, and that generations and relatives, why should that be limited to only donor conceived? Just Just Just a question for our discussion? I know it wasn't the topic of the conversation, but in my mind, it is. intimately, for lack of a better word, no, no pun intended, linked to this entire conversation that we're having. Well, there's no, you're right, there is not much conversation.
Griffin Jones 47:02
I don't I really don't think so. And so for all of the advocacy, folks, I'm I'm happy to cover the issues that you want. And you can send your experts on the show. But I also suggest you might consider this issue more because I can I can see broad reaching implications regarding anonymity, and I just don't hear us talking about that nearly as much. You're you've said, eager that you're not the ethicist and I think that's probably why you're a good attorneys that you're very dispassionate. And you look at the law and and I, but in what you're seeing is that it's, it's lopsided right now. And and here are the risks from the discussion being lopsided at the moment. So if you're not the ethicist who should be arguing the other side of what's reasonable, so it's reasonable to want certain things as, as a donor conceived person, it's reasonable to want things as a donor, it's reasonable to want things as a provider. So all things are a negotiation, at least they should be when they get bent to one party gets a preferential treatment, then we've we've lost a, what I perceive to be a law following Republic, but who makes though, like, who helps that negotiation along and, and, and what parties and what a parties need to do to advocate for themselves?
Igor Brusil 48:35
They need to advocate for themselves. You just answered your question. The parties know exactly who they are. The party is no exact meaning
Griffin Jones 48:44
the agencies, the providers, the
Unknown Speaker 48:46
clinics, and she's the gamete bank. Well, here's the
Griffin Jones 48:50
well, but is there any alliance for donors? Probably not. Right. Maybe I'm making an assumption, but
Igor Brusil 48:58
I'm not aware. And, you know, I've put myself in a position of a donor many times mentally as a mental exercise. And I asked myself, would I, as a donor wants to know, what exactly are my rights? And indeed, several states now permit donors to be a disclosed donor, meaning they will sign a piece of paper that says, I permit view sperm bank to tell the recipient couple who am fabulous, but those laws don't allow the donor to go back and pull that authorization away. I have a fundamental disagreement that with that approach is fundamental. But again, it's an ethical question. So donors, if they say, I don't want to be disclosed, they can later say, Fine. I agree to be disclosed. But once you say, disclose, you can go back and say no, I don't. I have not seen anyone advocating on behalf of the donors. And I see a very good reason why donors may not want to have any right, taken away from them irrevocably, like a right not to be disclosed.
Griffin Jones 50:28
But if donors, but donors aren't going to be advocating for themselves, because so many of them don't want to disclose their identity. So then whose I get the providers, the agencies, but they have their own needs to advocate for right. So is this naturally going to be an imbalance debate?
Igor Brusil 50:49
Most likely, yes. Unless some entity, some person, some organization, I don't know what it might look like, decides to advocate on behalf of the donors and have a real discussion, there was no discussion. There are demands and responses to demands on the part of several legislators, legislatures, and kind of a reflex like conversation within the IVF community visa vie recommendation or an ethics opinion from from SRM. That's basically as far as we, as we go, I haven't seen a discussion. I'd love I'd pay any money for a town hall discussion with donor conceived persons on the scene, and players in the HRT community discussion that basically says, Fine, we recognize you have those interests? What would it take to satisfy your demands? Tell us exactly what is it that you would think matches all of your demands? And have a discussion. And there will be I am guessing dozens of fissures that no party can can implement in the current legal environment and framework unless you have a department of reproduction that controls every ovulation and every direct relation and knows what goes on and we're becoming a dictatorial state. In terms of reproduction, what involvement
Griffin Jones 52:40
has the ASRM had in this legal advocacy up to this point?
Igor Brusil 52:47
I think it would be inappropriate of me to speak for ASRM I can only see what I can see published, I am not privy to any discussions. So I just probably a week ago or even less, the latest issue of fertility instability published the latest ethics opinion on issues related to donor anonymity. And there is a suggestion that donors should be provided legal counsel, legal consultation, before they donate. You know what I am ready to say at least to myself, they should be represented by an attorney. We are at a point where in third party reproduction, every one is represented by an attorney. But the doors so there is recognition that legal rights and obligations are involved in just about everyone is represented by but the doors I didn't say, Well,
Griffin Jones 54:01
that would really cut down on toners, wouldn't it? Especially if they had to pay their own legal expenses? Because then the question is, well, who pays the legal just didn't do the intended parents pay the legal expense when there be a conflict? Is the provider to the agency? Is there a conflict there?
Igor Brusil 54:17
And that's why I think what we do not have currently is a serious discussion where uncomfortable issues are brought up and discussed. I do realize that we will live in a time where Play Doh and petting zoos and safe spaces are becoming commonplace. Because everyone is offended by whatever you say, I'm sure there will be people who will be livid when they hear this podcast if you decide to post it because they're they would feel that I offended them well. If you human interaction invariably The leads to one slide being offended, and there will be the F, offend door and offend D. In legal terms, I just made that up. But if we if we're not prepared to have a serious discussion, then we're going to have with a patchwork of laws, one in this state one and the other state that will drive up the costs that will create uncertain risks for everyone involved. And the community pushing for more rights will still remain unsatisfied. Because you can't enforce they can't compel donors to do what they're asked to do. You just can't. There's no legal mechanism to compel a donor to disclose all of the physicians that he or she had seen, to name all of their relatives to bring verified medical records of all the relatives, there is no way to get to a point the the door community wants to go to, as far
Griffin Jones 56:17
as you know, is there any decrease in the I should know this? But I don't know this. I finger on the pulse of you know, transfers, retrievals egg freezes that type of thing. But I don't know if there's any decrease in donors in? It doesn't seem to me that there is one because our clients are whenever when they engage us, it's almost always to get more matches to get more recipients. So they seem to be stuck, stopped on the donor front for both o sites and sperm. But as far as you can tell, is any of this risk to donors leading to a decrease in donors, or is that not happened yet?
Igor Brusil 57:07
The answer is, I don't know. The first part pertains to how many donors there were and how many there are now. In order for me to answer that question, I would have to have all of the confidential info of every sperm bank or everything in front of me so that I could add things up and compare them in real time. I just don't have that. What will happen in the future, I don't have the crystal ball. There are certainly arguments that fewer donors would be willing to donate. And there are arguments that if there is a decrease, it's not going to be a substantial decrease. I just don't have a crystal ball. I don't know, my and I'm speaking simply as a member of the community, I observed that current generation does not value privacy as much as the prior generations. So it may be that the donors of today, simply just don't care. You can find me on LinkedIn, Facebook, Instagram, Tik Tok union fight, it doesn't bother me. So it may come to a point where donors couldn't care less and there isn't going to be any change. But my expectation is that if all of these laws are complied with, number one, the cost of donors profile vial or eggs will go up by how much? I don't know. But same Colorado, you have to be if you're conducting business in Colorado, and you're licensed in Colorado put into that law could be a $500 license. Plus they want to inspect so you need to have they require a compliance plan and remedial plan. So somebody would have to create that. That's an additional cost. Anytime someone does anything within the organization, there's a cost attached. So it's Sperone is not cheap today, could be $1,000 of IO plus 300. For shipping plus, incidentals, blah, blah, blah, you're looking at a $2,000 vial. If you have to spend more money on compliance. You just want the buyer was not going to be cheaper.
Griffin Jones 59:36
Now, I want to let you conclude with some parting advice. An attorney let me do the disclaimer for you. You can do it again. If you want it. It's not legal advice. I guess some insight as to what people should think about doing next for what they should be looking into, I guess suggestions as to what they should be looking into As far as how they should protect themselves, we do have some agency owners that listen to the show, but it's more Rei practice owners
Igor Brusil 1:00:08
will. If I were any one of the persons or entities you just mentioned, I would look at the current laws in my state, and find out what other states have laws that are relevant. And I would certainly retain an attorney who is experienced in health care and privacy because as I mentioned at the outset, there could be laws that are not specifically IVF, or a or T or reproduction related, that might trigger certain legal concerns. And if I'm a physician, and I'm speaking, based on my experience outside of a party, or Rihanna sphere, I would not take lightly all of these risks and responsibilities, particularly when it comes to being truthful with whoever you're dealing with. Because I've defended physicians and dentists and other not licensed health care providers, the boards will come out and if the board takes disciplinary action, and one state is required by federal law, to upload that information into the national data base, and the licensing board in a different state, where the physician was licensed, will most likely conduct periodic reviews of the database. And if that ding from a different state pops up, guess what? Your state's licensing board now gets involved? So is it a remote possibility? It's a possibility. It's a very real possibility. And in my experience, physicians don't even know how far they can go, how deep the more can dip. That's an issue. If I am running a sperm bank or an egg bank, will sure I as a businessman or businesswoman or business. I'd like to know what the rules of engagement are. If there are 50 rules, then I will have to make a business decision which states I will operate and which I won't. Or I will have to make a business decision with regard to donor screening and pricing and anyone who is involved in this process should do illegal self reflection, preferably as self serving as it may sound with a licensed professional. So that's I think, is my advice on that and the conversation needs to be needs to be maintained. It can't be a one sided trend, where one party is at the helm of the locomotive and drags the train and lays the tracks in the direction that he wants. The train will soon be running over if you don't.
Griffin Jones 1:03:25
Well, this is a good episode for the ASRM to listen to it's a good episode for the fertility providers alliance to listen to for those of you that want to get in touch with Igor Brousseau. His website is brutal law group.com Bruce Willis br U S. I L. Bruce a law group.com Igor bluesil embryologist turned attorney. Thank you so much for coming back on to inside reproductive health.
Igor Brusil 1:03:51
Thanks for Griffin. It's been a pleasure. Thanks very much.
Inside Reproductive Health 1:03:55
You've been listening to the inside reproductive health podcast with Griffin Jones. If you're ready to take action to make sure that your practice thrives beyond the revolutionary changes that are happening in our field and in society. Visit fertility bridge.com To begin the first piece of the fertility marketing system, the goal and competitive diagnostic. Thank you for listening to inside reproductive health