Hello loyal readers,
You may have noticed it has been kind of quiet around here for the past number of months. I was on parental leave and am just getting back into the swing of the "extras", including this blog.
The reason I was truly able to take parental leave was because my partner, Anatoly Dvorkin, stepped in and worked with my clients in my absence. He did a fantastic job and discovered that he was both fascinated by the issues that develop in a fertility law practice and enjoyed the warm and personal relationships that develop in this area of law, too. So, although I am back and handling the majority of the fertility law files myself, Anatoly is going to stay on too and be available to fertility clients looking to work with him, in addition to continuing with his commercial litigation, business formation and technology practice. We think it is a great opportunity as Anatoly brings a different perspective to the area. You can read about Anatoly on the Fertility Law Canada
website, or check out more detailed information about this general practice on the D2Law
website. We look forward to helping you build families!
I'm in the midst of attending a conference where it is clear that most of the participants feel very strongly against both commercialized egg and sperm donation, as well as against anonymous gamete donation. These are not rare positions in Canadian circles, and are well-regarded in legal and other academic circles. In its most basic terms, the argument against commercialization of human gametes is that it is morally repugnant to put a price on that which creates life. The argument against anonymous gamete donation, at its most basic, is that it is not in the best interest of the children conceived from the use of these donor gametes who have the right to know their biological origins.
For years now, ever since the Assisted Human Reproduction Act became law back in 2004 and prohibited the purchase of donor gametes from a donor or a person acting on behalf of a donor, most donor sperm used in Canada has been imported via the US or other countries. Much of that sperm is paid for by the sperm bank in a jurisdiction where it is legal to pay for gametes. The sperm is then purchased either by an importer of sperm from Canada or directly by Canadian parents. Over the past couple of years, the same situation has become possible when it comes to donor eggs as the technology to vitrify and thaw the ova is now available so now there are not only sperm banks but egg banks too.
My best guess is that because of the restrictive and shockingly severe criminal sanctions in the AHRA (i.e up to 10 years in jail and/or $500,000 fine), more and more Canadian clinics and patients are going to turn to importing donor eggs as opposed to going through donor ova cycles here. To make a long story short, whether or not this is legal is a nuanced answer where the devil is in the details but suffice it to say that I think it is possible to carefully work within the confines of the AHRA to import ova into Canada in a legal manner.
The problem? Here it is: At this point, most egg banks in the US offer only anonymously donated eggs (it seems to me that the push to use known or open-i.d. gametes is generally much stronger in Canada than the U.S.). Further, my best guess is that all of the egg banks pay the donors for the eggs. Accordingly, in a quest to prohibit commercialized gamete donation and anonymous donation, we have pushed Canadian clinics and parents toward what many will undoubtedly see as a legally preferable process than trying to negotiate the legislative minefield that is the AHRA (which fails to clarify what is an appropriate reimbursement with the potential penalty ranging from 5-10 years in jail and/or $250,000-$500,000 in fines) which will likely result in far increased use of ova which were paid for in the U.S. and provided on an anonymous basis. Further, whereas when a donor in Canada goes through an egg donation cycle, we know she has publicly funded health care available to her, we can monitor the quality of her care, there are laws specifically targeted to ensure that she consents to the procedure, there is a legal system available to her if she were to suffer damages, there are resources (such as lawyers, psychologists, etc.) available to her, etc., We lose all such control over the process of egg donation and the resources available to a donor when the donation cycle happens outside of our borders. So, while the criminal provisions of the AHRA may end up keeping our backyard clean, it is at the loss of being able to do a better job with a uniquely Canadian perspective and bent regarding assisted reproductive technologies at the expense of the donors and the children born through the use of donor gametes.
This morning, the Supreme Court of Canada denied Olivia Pratten's application for leave to appeal to the Supreme Court of Canada. See the Vancouver Sun article here
Ms. Pratten is a Canadian woman who was conceived through the use of donor sperm in the early 1980s. Ms. Pratten sued the Province of British Columbia (and others) for, among other things, discriminating against donor-conceived people as compared to adult adoptees by failing to take steps to ensure that identifying and medical information about the donor was available to donor-conceived people upon reaching the age of majority. Ms. Pratten alleged that donor-conceived people suffered from various traumas as a result of not having access to such information, and this allegation was accepted by the lower court. Ms. Pratten was successful in the lower court, but the decision was overturned by the B.C. Court of Appeal. For more information about the decisions, read this article here
The fertility community - including parents, donor-conceived people, clinics, sperm banks, doctors, and lawyers - was waiting with baited breath for this decision. Although the case was originally brought in B.C., if successful, it was widely believed that the implication would be a national ban on the use of anonymously donated sperm and eggs across Canada. This would be the case for all donor sperm and eggs, despite the lack of known or open identification donors among various ethnic groups, the parents' preference, etc.At this point in time, of all the donor sperm used in Canada that is not from a known donor (for the most part, such sperm being imported into Canada from the U.S. and Europe), about 60% is from open identity (open-i.d.) donors, meaning upon reaching the age of majority, the child already has access to information about the donor through the sperm bank (notably, though, this is a contractual relationship and the information provided is not through the state, province or territory). The specifics of what information is available to the donor-conceived person varies from sperm bank to sperm bank. The only remaining national Canadian sperm bank, Repromed, also offers donors and parents open-i.d. as an option. Over the past decade or so, there has been a definite increase in Canadian parents' preference to use known or open-i.d. donors as compared to anonymous donors. However, this preference isn't necessarily true for everyone, and isn't necessarily true of parents from every community. For example, some fascinating research has been published about the British South Asian community which seems to suggest that this community is one that would struggle with the idea of known gamete donation.Is it acceptable that parents have a choice in deciding what is in the best interests of their child, taking into account many different factors, including the culture in which the family exists? Is it enough that through education and research, without imposing a complete ban, far more Canadian parents are choosing known or open-identity donors than are choosing anonymous donors?
In my opinion, the best way to encourage known gamete donation across Canada is not to impose a ban on anonymity (which clearly isn't legally sound as per the B.C. Court of Appeal's decision), but for each province to draft legislation which clearly sets out the rights and obligations of sperm and egg donors, parents and children conceived through gamete donation, with respect to parental rights. If parents were less concerned that a donor may have parental or other rights to their child, it seems logical that they would be less concerned about the issue of anonymity.
Canada is finally lifting the almost 30-year lifetime ban on blood donation by gay men
. However, only men who have not had sex with another man within the past five years will be allowed to donate blood. Canadian Blood Services hopes to have this new policy in place by mid-summer. Although this is a marked improvement over the current ban which prohibits men who have had sex with another man even once since 1977 to ever donate blood
, the change does not go far enough. I hope that this is only a first step and that the ban will be further reduced to better balance the protection of those receiving the donated blood with respect for and inclusiveness of all people. Canada can look to other jurisdictions that balance these
competing interests in a less extreme manner, and through the use of empirical evidence. For example, Australia has a policy where blood donations are deferred for only twelve months. A study shows that Australia did not see an increase in contaminated blood donations when it moved to this model. However, as highlighted below, ideally the health of the donor should be determined based on a donor's behaviour and not on his sexual orientation.
This change may also reverberate to affect those who can be a sperm donor in Canada. Currently, the Semen Regulations
under Canada's Food and Drug Act only allow specific men to donate sperm. Restricted men include any man who has had sex with another man since 1977 (following from the ban on blood donation by gay males). If a man who has had sex with another man even once since 1977 wants to donate sperm, special permission needs to be obtained unless the sperm is being used by the donor's sexual partner. The regulation points to an increased likelihood of such a donor being infected with HIV.
This policy is unnecessarily discriminatory. It affects who can be a parent or a donor, and puts gay men at a disadvantage, regardless of the man's HIV status, whether he is in a monogamous relationship, and whether he even lives as a gay male or only engaged in sex with a man once back in 1980. If the government's concern is the health of recipients of donor sperm, it should be looking for indications of the donor's health and behaviour, as opposed to his sexual orientation or gender. For example, the current Semen Regulations (which I expect will fall by the wayside as soon as the federal government proclaims the new section 10 of the Assisted Human Reproduction Act
and the regulations thereto to be in force), require that any donor sperm provided for the use of someone who is not the sexual partner of the donor be quarantined for six months in order to protect against HIV and other transmittable diseases. If all donor sperm needs to be quarantined and tested anyways, why is that insufficient for gay males but sufficient for heterosexual males? Regardless, I'm hopeful that the change made to the restrictions on gay males donating blood will signify at least a similar change to the restrictions on gay males donating sperm (and that both policies will continue moving in the appropriate direction).
NB: I admit that I do not have scientific training so if I am missing something here, feel free to school me. As the policy stands, it seems to me like discrimination without the science or logic to back it up.
Today I had the opportunity to participate in Huffington Post's Change My Mind feature, in which I debated with Francoise Baylis about the American Society of Reproductive Medicine's new policy of increasing the age of IVF to 55 from 52. I argued that the increase is appropriate, and Ms. Baylis disagreed (as do many others). I think the debate is worth reading so check out the link here
. There have been some interesting discussions on the topic on my Fertility Law Canada facebook page
over the past few weeks as well. For readers, I have posted my argument below. I look forward to hearing what people think.
A couple of weeks ago, the Ethics Committee of the ASRM (American Society for Reproductive Medicine) published a paper called "Oocyte or Embryo Donation to Women of Advanced Age
." In it, the ASRM changed its long-standing policy so as to allow embryo transfer to women up until 55 years of age (where the women have no underlying medical issues that could increase health risks), an increase from the previous limit of 52 years of age. The reason behind the change? At least partly, this change reflects the fact that we now have data demonstrating that for women between the ages of 50 and 54, embryo transfer and pregnancy does not pose a significant increase in health risks to the mother or child as compared to younger women. However, studies show that women over the age of 55 are far more likely to experience hypertension, gestational diabetes and caesarian sections as compared to women in the 50-54 age range. Further, the limited data available about parenting in women who conceived and delivered after the age of 50 does not support the concern that such parents have reduced parenting capacity or capabilities; rather, children of these parents may benefit from increased financial and emotional stability.
Where there is no significant medical reason, and no empirical evidence demonstrating that older parents are any less fit than younger parents, is it right to deny an older women access to IVF solely on the basis of age? I think not.
Various jurisdictions across Canada have enacted legislation prohibiting the denial of services, including medical services, to a person on the basis of age (along with race, gender, sexual orientation and marital status, among others).
The denial of fertility services to a woman solely on the basis of her age falls squarely within the realm of age discrimination. Age is one concern, but what about the other bases of discrimination listed in the relevant human rights codes and acts? For example, there are those who argue that it is in the best interests of children to be raised by heterosexual parents.
Similarly, others may argue that it is detrimental for a child to grow up in a single parent household, in which the parent may be more stressed, have less time and attention for the child, and the child may have less access to financial and other resources. Thankfully, for the most part, we as a society have done away with the stigma associated with same-sex families or single parent homes, and in Canada, fertility services are largely provided to heterosexual, same-sex, married and single people alike. However, if we begin denying fertility services to a 53-year-old woman (thus effectively determining who may and who may not be a parent) without any empirical evidence in support of the policy, it is not much of a stretch to imagine denying fertility services to other groups, including single parents or members of the LGBT community, all in the name of the best interests of the child.
Further, even if we look at this issue solely from the perspective of the best interests of the child and ignore any reproductive right to which the mother may be entitled, it is faulty logic to assume that younger parents = good, while older parents = bad. For example, if we had a situation where the prospective mother seeking to access IVF is 53 years of age while her partner is 65, we have one set of concerns that is effectively minimized where the same
woman's partner is 37 years of age. Similarly, if we look at a situation where the prospective mother is 53 years old but healthy versus a situation where the mother is only 30 years old but has a terminal illness or an illness which will
greatly affect the quality of her parenting, the best situation for a child may, in fact, be with the older mother. There are many factors that go into determining who makes a good parent, and if age is arguably a factor, it is one of many. For example, if we decide that mothers older than 52 ought not be parents, could we not make similar decisions on the basis of the mental health of a parent, financial resources available to the family, functionality of the family and the like? Drawing hard lines in the sand about something as arbitrary as the appropriate age to be a parent is an overly simplistic view that will undoubtedly result in poor decisions.
The ASRM's change in policy is refreshing in that it is based on empirical evidence. This contrasts sharply with Canada's sorely lacking legislation dealing with the use of assisted reproductive technologies, borne out of fear of the unknown. Instead of non-parties continuing to impose their moral judgment on others about they choose to build their families, perhaps we can recognize that most women between the ages of 53-55 who now access IVF as a result of ASRM's policy change will be making a well-considered decision to bring a wanted and loved child into the world. Let's give these parents some credit. Besides, what right do we have to make this very personal decision for them?
Earlier today, Mark Warawa's Motion 408 to condemn gender based abortion was unanimously declared unvotable. According to an article
in the pro-life website LifeSiteNews.com
, Motion 408 was declared to be unvotable as parliament had already taken up the issue. Moreover, and from my perspective more interestingly, Motion 408 was also found to be unvoteable because abortion is a health matter and therefore properly dealt with under provincial jurisdiction rather than federal jurisdiction. Putting on my fertility lawyer's cap here, if abortion is clearly a health issue and therefore provincial, isn't it only logical that fertility treatments are also a health issue and therefore ought to be governed on a provincial basis rather than federally by the Assisted Human Reproduction Act
and Health Canada? The 2010 Supreme Court of Canada Reference Re AHRA
determined that the impugned sections of the AHRA were overreaching as they were properly health matters and therefore outside of the jurisdiction of the federal government. However, it seems to me that the Reference decision failed to go far enough by failing to challenge the legislation in its entirety. For example, IVF and the consent thereto - health matter or criminal matter? To my mind, the answer is clear - health matter. However, section 8 of the Assisted Human Reproduction Act requires a doctor to obtain the written consent from a patient using his or her own gametes for in vitro fertilization treatments, among other things. So far, makes sense. Here is the problem - failure to obtain the consent (in line with fifteen pages of regulations) remains a criminal matter under the AHRA, punishable by up to ten years in jail.
The answer seems obvious to me - fertility is a health matter, and not criminal. Let's start over and perhaps the provincial government will have more success than has the federal government in providing logical, evidence-based legislation and regulation that allows doctors to provide medical care and patients to receive it without the threat of incarceration.
Over the past few days, there has been a veritable flood of articles in Canadian media about the practice of California IVF: Davis Fertility Center Inc. creating embryos to sell to clients to be used in IVF. See, for example, Wendy Leung's "Should IVF Patients be Allowed to Buy Embryos?"
, Sharon Kirkey's "For Sale: “Donor Embryos” Newest Addition to World of Artificial Procreation"
and "Marni Soupcoff on the Sale of Fertilized Embryos: How much for that Blastocyst
in the Window?"
. As a lawyer practicing in fertility law with my ear to the ground and an active embryo donation practice, California IVF's practice wasn't news to me. In fact, over the past three weeks I have made as many presentations about embryo donation, all of which began with a statement about what embryo donation in Canada is not (being the practice in which California IVF is engaging).
In Canada, it is illegal to purchase (but not to sell) donor eggs or sperm (punishable by up to ten years in jail and/or a $500,000 fine), but it is legal to import donor eggs or sperm which were paid for abroad (see my earlier post here
on this topic, or my Huffington Post article here
). It is also illegal to purchase or sell embryos in Canada (also punishable by up to ten years in jail and/or a $500,000 fine). Although Bill C-38 (formerly known as the Omnibus Bill) introduced new legislation this past June that, when it takes effect, will regulate the importation of donor eggs into Canada (a practice which is currently unregulated), Bill C-38 and the Assisted Human Reproduction Act
are curiously silent when it comes to regulating the importation of donor embryos into Canada. Altruistic embryo donation, though, is legal and in my opinion, an excellent option worth consideration when a person has embryos left over from their own IVF cycle(s) (the other options being discarding the embryos, donating them to medical research or indefinite cryopreservation).
As a whole, the articles focus their collective outrage about California IV's practices on the aspect of purchasing donor embryos. While this practice is strictly prohibited in Canada and certainly raises ethical concerns for some who argue that it is commodification of human life, I would argue that for many of us who practice in the fertility sphere, it's not the exchange of money that is so unconscionable. In fact, I would make an educated guess that while practitioners in Canada respect the law, most are strongly opposed to the AHRA's prohibition on the sale of gametes and believe that it is bad policy (the same is not necessarilty true about the purchase and sale of embryos). Based on my conversations with fertility lawyers and clinicians, the ethical concern and associated uproar isn't about the sale of embryos per se, but about clinicians creating embryos at their discretion without any particular parents in mind, using the characteristics that the clinicians determine are most likely in demand, which the clinicians then try to sell to potential intended parents. Clinicians creating embryos out of donor eggs and donor sperm for an infertile individual or couple's use at the request of the parent(s) - it happens all the time. Clinicians creating embryos with the hope that at some point a parent will show up and purchase the stockpiled embryos - this is what is so upsetting to so many.
Legally, other than the commodification issue, there is nothing at odds with Canadian law about California IVF's practice, assuming both the sperm donors and the egg donors have provided proper consent. Why is it, than, that this is so disturbing to so many of us, myself included? Dr. Laskin of LifeQuest IVF
was quoted as saying that, that while many of his colleagues are uneasy with what’s happening in California, "[t]wo to five years from now, people may not even bat an eye at this." This may be true, but for now, I agree with Francoise Bayliss that it is preferable (though not necessarily practical) to use one of the thousands of embryos cryopreserved in the clinics across Canada.
Last night, I saw the play Hatched
at the Toronto Free Gallery. I had been waiting eagerly for the play to open, ever since first being contacted by the playwright, Claire Burns, reading a draft of the script, and then attending at and speaking at a fundraiser. Hatched
is a play about egg donation. It asks important questions: what makes a family? How important is biology? How much of a person is nature vs. nurture? Should parents tell a child born through the use of donor gametes about their conception, and if so, when? What role should a donor play in the life of the child conceived through the use of the donated gametes? Hatched
goes a step further, though. It asks questions about the emotional experience of the egg donor. What does the experience mean to an egg donor? Is the donor curious about children born through the use of the donated ova? It explores the emotions of a woman who had donated her eggs in her youth and later ends up suffering from infertility; the only child with a biological link to her that will exist is the child who was conceived with the use of her donated eggs.
Because Hatched is a play and is therefore not required to be true to life, there are parts that are a little bit fanciful. An intended parent being able to steal the medical records of an anonymous egg donor seems unlikely. Even more unlikely is the egg donor being the guidance counsellor of the child conceived with the use of the donor eggs. Regardless, I think it's important to explore the issues surrounding egg donation (and other third party reproductive technologies) from all perspectives, and theatre and art are excellent forums for this. My one caveat, though, is that the audience must remember that this is a play, and not the actual experience of the donor. If we look back to Margaret Atwood's The Handmaids Tale
, for example, when it comes to reproductive technologies, sometimes fiction has taken the place of reality in making policy which is a dangerous thing.
Hatched is playing through the 17th of November. Tickets can be purchased here
For me, PRIDE is a time of hope and celebration, and I think it is apropos that we recognize just how far we have come as a society in helping all people who want children build their families in various ways, including through assisted reproductive technologies (ARTs).
I often mention that, in my opinion, the Assisted Human Reproduction
Act starts out with a bang that is truly something to be proud of (unfortunately it
fizzles out from there). Specifically, the Act states that,
s. 2 The Parliament
of Canada recognizes and declares that…
(e) persons who seek to undergo assisted
reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status.
While ARTs are often lauded for their success in helping people with infertility, they are just as useful, necessary and laudable for members of the LGBT community who do
not suffer from infertility. Gay men in particular benefit from accessible ARTs with an emphasis on the T for
technology; donor insemination has long been a self-help remedy, but there is no corresponding self-help remedy for gestational surrogacy.
Although there is much to celebrate (and there
really is – so many beautiful families would not have been possible without ARTS), it’s imperative that we learn how to make section 2(e) of the AHRA more than just an ideal but a reality. To that end, I want to share with you the hands-down best presentation regarding ARTs that I have been to all year, which hopefully will obain the funding to be presented repeatedly throughout Ontario:Reframing Assisted Human Reproduction: A forum theatre workshop about LGBTQ people’s
experiences with AHR services
The workshop is based on interviews conducted with 66 LGBTQ people across Ontario who have used, considered using, and/or avoided using AHR to have genetically related children. Some of the worst experiences of
the interviewees are portrayed for the audience (the performance is candid that it is reflective of the worst-case scenarios and doesn’t reflect any of the positive experiences of the LGBTQ community accessing ART services in
Ontario). I have to admit, I had my doubts about a performanced based workshop, but it was incredibly effective. As far as we have come with people of the LGBTQ community having access to ARTs, the experiences as performed in the workshop were shocking, eye-opening and traumatic. From the things that we can easily remedy to be more sensitive, such as offering genderless bathrooms, to the way consent forms are drafted making
assumptions as to gender and sexuality, this presentation highlighted practical ways in which we can make ART services truly accessible to the LGBTQ community.
For more information, please contact Lesley Tarasoff
416-535-8501 x 7386
or see http://www.lgbtqhealth.ca/
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A quick note about my earlier post regarding the legality of paying for imported banked frozen ova into Canada (read it here
1. I'm proud to announce that a version of the post was published in the Huffington Post here
2. I heard through the grapevine that Health Canada
confirmed that purchasing banked eggs and importing them into Canada is, in fact legal. I am hoping to obain confirmation of that in writing shortly!