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.
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.
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!
On April 22, CBC’s The National aired a segment (Frozen Human Egg Trade
) in which Kelly Crowe discussed how new technologies have progressed to enable human eggs to be retrieved, cryopreserved and banked in the US, and shipped to recipients in Canada. Dr. Matt Gysler, a fertility specialist at ISIS Regional Fertility Centre
in Mississauga, Ontario, openly stated that his patients frequently purchase and use these eggs for their reproductive purposes in Canada. Dr. Gysler opined that just as it is legal to pay for frozen sperm imported from the US, so too, then, must it be legal to pay for eggs cryopreserved in the US and import those into Canada. CBC interviewed Ms. Levitan, a fertility lawyer, who disagreed with Dr. Gysler’s analysis. She stated that “it’s not a defence to say ‘but you said it was ok for sperm’…” and that she believed that people importing these eggs could face criminal prosecution. Unsurprisingly, this program was followed in quick succession by a number of further stories on CBC and other media. Suffice it to say that any Canadian suffering from infertility or looking to build a non-traditional family through the use of donor eggs likely absorbed the message that purchasing these banked eggs is illegal.
I respectfully disagree.
It is incomplete to state that the Assisted Human Reproduction Act
(known as the “AHRA”) prohibits the purchase of ova or sperm; the AHRA only prohibits the purchase of ova or sperm from a donor or a person acting on behalf of a donor
. The World Egg Bank
, depicted in The National segment, has a program whereby it purchases eggs from US donors and stores them until such time as they are purchased by an intended parent. With recent technological advances, the eggs could conceivably be bought by an intended parent years after their retrieval. The egg donor is paid, though, at the time of retrieval, regardless of when or whether an intended parent purchases the eggs from the Bank, much in the same way that sperm banks function. Accordingly, the intended parent is purchasing eggs, but is not purchasing eggs from a donor, nor is the parent purchasing eggs from a person acting on behalf of a donor.
As Dr. Gysler mentions, Assisted Human Reproduction Canada
has condoned the practice of purchasing frozen sperm from the US and importing it into Canada. To my mind, the reason that the purchase of sperm from a sperm bank is legal is not because of the Semen Regulations
(yes, there is such a thing) with which all imported semen must comply, but because the sperm is not purchased from a donor or a person acting on behalf of a donor; the sperm bank (and now the egg bank) is not acting on behalf of the donor, but on its own behalf. The issue, then, has little to do with whether a payment over the internet is found to be a payment made in Canada, as stated by Ms. Levitan. In my opinion, even if the payment for a cryopreserved banked egg is made in Canada, such a payment is not prohibited by the AHRA and is therefore legal.
Two lawyers disagreeing over a legal analysis isn’t particularly interesting to anyone other than the lawyers themselves. What is interesting, though, and the reason you ought to care about our differing legal analyses, rests precisely on the point where Ms. Levitan and I do, in fact, agree – despite the fact that I am confident in my legal analysis, I, too, continue to be concerned that potential clients who engage in such a transaction could open themselves up to an investigation or to criminal charges. A strong argument that one has acted within the confines of the law is of limited comfort when faced with the risk of criminal charges, especially where the penalty for contravening the law is up to 10 years in jail and/or a fine of $500,000. As fertility lawyers
, neither I nor Ms. Levitan should be in a position where we must advise clients on a daily basis that the law regarding egg donation is so unclear that despite best efforts to work within the confines of the law, the potential for being investigated and even criminally charged remains. Even more so, people struggling to build their families who must rely on third party reproductive technologies ought not be put in this untenable position. Other offences and corresponding maximum imprisonment:
- · Advocating genocide – up to 5 years
- · Polygamy – up to 5 years
- · Public incitement of hatred – up to 2 years
- · Wilful promotion of hatred – up to 2 years
- · Assault (without a weapon) – up to 5 years
- · Assault (with a weapon) – up to 10 years
- · Forceable confinement – up to 10 years
The federal government of Canada announced its budget today. Noticeably absent is any funding for Assisted Human Reproduction Canada (AHRC),
the federal corporate body enacted to implement the Assisted Human Reproduction Act and its regulations. By scrapping the AHRC, Canada will save nearly $10 million per year (see Health care a target in Tories’ deficit reduction plan
In December 2010, the Supreme Court of Canada found that many aspects of the assisted reproductive technologies (ARTs) were within provincial jurisdiction as they are health, and not criminal, matters. Accordingly, much of the Assisted Human Reproduction Act
was found to be unconstitutional (see the Supreme Court of Canada decision here
). However, sections 5 through 9 (among others) remain. Notably, sections 6 (which prohibits the payment of a surrogate mother) and 7 (which prohibits the payment for eggs or sperm from a donor or a person acting on behalf of a donor) remain in force.
Eliminating the AHRC does not legalize any of the prohibitions in sections 5 through 9. However, it will undoubtedly affect the enforcement of the AHRA, and further demonstrates just how unrealistic and unworkable the current state of fertility law in Canada really is. Let's hope that the federal government scraps the AHRA completely instead of holding on to a poorly constructed piece of legislation and flogging a dead horse.
As stated by Justices LeBel and Deschamps at para 251 of the SCC Reference re Assisted Human Reproduction Act,
"...Parliament, in adopting the Baird Report’s recommendation on controlled activities, intended to establish
national standards for assisted human reproduction. The purpose was not, therefore, to protect those who might resort to assisted human reproduction on the basis that it was inherently harmful. Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act
, brings benefits to many Canadians."
Last week, the issue of some Canadians aborting female fetuses as a means of sex selection and how to prevent this returned to the forefront of fertility law headlines. Dr. Rajendra Kale, the then-interiim editor of the Canadian Medical Association Journal, reignited this hot topic by publishing his editorial entitled, "It's a girl!" - could be a death sentence
. In his opinion, gender based abortions are an evil propagated by some Asian communities, and is unacceptable in Canada. His solution to stopping this practice is to deny all Canadian parents access to information about the gender of a fetus until about 30 weeks, at which time it is extremely difficult to get an abortion.
Dr. Kale's editorial set off a media storm about the practice of female feticide in Canada, and the merit of Dr. Kale's proposed solution. See these related articles from the National Post
, the Toronto Sun
and The Globe and Mail
and perhaps as interesting, see the readers' comments. As would be expected, there were and continue to be many vocal opinions shared across Canada on this subject.
Andre Picard responded to Dr. Kale's piece with an editorial of his own in his column in The Globe and Mail. His editorial, Sex Selection is a Complex Issue with Many Nuances
is bang on in that, with respect, Dr. Kale's proposed solution is overly simplistic and fails to address the root of the problem. While it may seem that the issue of sex selective abortions is black and white, it is actually quite nuanced and brings up other important issues relating to multiculturalism, tolerance, reproductive freedoms and feminism that Dr. Kale's solution disregards. Despite many readers comments to the contrary, just as being a pro-choice advocate is not equivalent to being a pro-abortion advocate, disagreeing with Dr. Kale's proposal does not make one pro-sex selective abortions. Now putting on my fertility lawyer hat, what I find truly absurd is that sex selective abortions are legal in Canada, but engaging in PGD (pre-implantation genetic diagnosis) or embryo selection in order
to implant embryos of a particular gender (except for the purpose of preventing, diagnosing or treating a sex-linked disease) is a criminal act carrying with it the penalty of up to ten years in jail and/or a $500,000 fine (see sections 5 and 60 of the Assisted Human Reproduction Act
). To my mind, if people are going to select the gender of their child, is it not ethically more acceptable that they do so at the embryonic stage, prior to the existence of a fetus, instead of aborting a fetus? If we think like Dr. Kale, the simple solution, then, would be to criminalize sex-selective abortions in a similar manner as we criminalize engaging in procedures to determine the gender of an embryo. But just like Dr. Kale's proposed solution was overly simplistic, so too is this solution. We can only imagine the repercussions of criminalizing sex-selective abortion, and regardless, it would be all but impossible to develop a system to determine which abortions were only performed for the purpose of sex selection, and no other purpose that is legal (such as not wanting a baby at all). Instead, to rid the law of this absurdity,
we should allow the lesser evil (if it is an evil at all), which is selecting embryos of a certain gender to implant instead of forcing those who will engage in sex selection to abort fetuses.
After what feels like years of silence, Parliament recently released a background paper entitled, Legal Status at the Federal Level of Assisted Human Reproduction in Canada
. The brief paper reviews the history of the legislative and legal processes through which we have arrived at the mess referred to as fertility law, or reproductive technology law, in Canada. Unfortunately, the paper provides no indication of whether Parliament intends to repeal or amend the Assisted Human Reproduction Act, S.C. 2004, c.2
, nor do the authors of the paper provide any suggestions to improve upon the legislation.
The AHRA was never a reasonable or realistic piece of legislation. The December 2010 Supreme Court of Canada Reference re Assisted Human Reproduction Act
gouged out large pieces of the legislation leaving the state of fertility law in Canada in the form of an enormous question mark. When the Baird Commission was appointed in 1989, our understanding of assisted reproductive technologies (ARTs) and our comfort with their use were very different than they are today, 23 years later. A prime example of this can be found in the AHRA itself where sections 5 - 9 are grouped together as "prohibited activities" and are subject to the same penalties (section 60 - a fine up to $500,000 and/or imprisonment for a term not exceeding ten years) . These prohibited activities, though, range across a wide ethical spectrum, including purchasing or offering to purchase donor sperm or donor ova (section 7), paying consideration or offering to pay consideration to another person to arrange for the services of a surrogate mother (section 6), creating a human clone (section 5a), transplanting a fetus of a non-human life into a human (section 5g), creating a chimera (section 5i) and creating a hybrid (section 5j). From my vantage point, it seems obvious that any evil (if any exists, which I don't believe it does) inherent in paying someone to match a gestational carrier with intended parents is on a completely different ethical playing field than is creating a chimera or a hybrid, and the law ought to reflect this. The Handmaid's Tale
-esque nightmare envisioned has not come to pass, and in recent times, we finally have empirical evidence to prove it (see Professor Karen Busby's influential paper, Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers
). As stated by Justices Abella Lebel and Deschamps, "The purpose [of the AHRA] was not…to protect those who might resort to assisted human reproduction on the basis that it was inherently harmful. Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians."
The AHRA is a mess and no longer reflects Canadians' values with respect to the use of ARTs, if it ever did. It's time for new, clear and reasonable legislation based on the empirical evidence now available to us about the use of ARTs, instead of legislation based on a fear of the unknown.