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.
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
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!
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."