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.
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 Supreme Court of British Columbia released a landmark fertility law decision where, for the first time, sperm was held to constitute property at law. You can find the J.C.M.
. decision here
.Briefly, here are the facts of the case:A lesbian couple purchased sperm from a US sperm bank. Using this sperm, they conceived two children at Genesis Fertility Centre. The couple later broke up and divided up the assets of their relationship, but inadvertently failed to come to an agreement about the remaining sperm. The applicant, J.C.M., later met a new partner and wanted to use the remaining frozen sperm to conceive a child who was biologically related to her previous children. A.N.A. refused
to allow the use and instead asked that the cryopreserved sperm be destroyed. J.C.M. brought the application seeking a declaration that the sperm was her sole property.The Honourable Madame Justice Russell ordered that the 13 remaining sperm straws be divided between the parties.Here is what I had to say about the decision:
watch the brief video hereTake home point: while an important decision, I doubt that the issue of whether gametes are property at law is resolved by this decision. How would the judge have decided had the remaining donor gamete been a single cryopreserved egg that could not be divided? Would the decision have differed had the donor sperm not been purchased by the parties, thereby taking away any meaningful argument from the respondent that treating human gametes as property devalues and commercializes human tissue?
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
Dear Margaret, It's me, Sara.Like many others, I'm a fan. Loved Alias Grace, The Robber Bride. Enjoyed your poetry. Above all, though, I love The Handmaid's Tale. I remember the first time I read The Handmaid's Tale. I was so affected by the book - the characters, yes, but even more so the ideas, the possibilities, how a society can go so very, very wrong. I'm certain that I have never looked at butter the same way. Since then, I would guess that I have read it at least five more times and it undoubtedly was influential on my chosen and beloved career path - fertility law.
As you are no doubt aware, your book is (dis)credited as the basis upon which the Baird Report and the subsequent Asssisted Human Reproduction Act were written. It is therefore in your name that, in ostensibly trying to protect women from being exploited for their reproductive capabilities as were the women in Gilead, the Assisted Human Reproduction Act prohibits paying a surrogate for her services, an egg donor for donating her eggs, or a person for arranging the services of a surrogate mother, whatever that means (including, ideally, a person with specialized training in the relationships between gestational carriers and intended parents).
Now, when I read The Handmaid's Tale, I don't see it as a call for the state to protect women from being exploited; rather, I see it as a message about the potential dangers inherent when a state imposes its ethical and moral views on its people in the name of protecting them - which, in my opinion, is exactly what the Assisted Human Reproduction Act has done.
So, dear Ms. Atwood, you are so involved with local and national politics and are undoubtedly one of the most influential Canadians of our time - could you please lend your voice to this issue, too? Women are capable of and should be entitled to make decisions about their bodies, including being paid to donate their ova to others who need them to build their family, or being paid to act as a gestational carrier to people who cannot build their family without their help. If women obtain medical advice, independent legal advice and psychological counselling and choose to engage in surrogacy or egg donation, why should the state protect them from themselves when they do not need or want protecting?
When people hear what I do for a living, they inevitably ask me - "what is fertility law?"
I decided to use my first blog post to explain what fertility law is. Fertility law is the developing area of law dealing with the legal issues regarding building families through assisted reproductive technologies (otherwise known as ARTs). Fertility lawyers are used in a number of situations, but are most often required when a person or a couple is using the help of a third party, such as an egg donor, sperm donor, embryo donor and/or a surrogate, to build their family. Fertility lawyers provide legal advice and guidance about the legal framework relevant to the use of third party assisted reproductive technologies, and obtaining legal parentage for the children born through these technologies. In addition, fertility lawyers provide advice to fertility clinics, sperm banks, cryobanks and other members of the fertilitiy industry. For a very brief explanation of the current framework for fertility law in Canada, click here
.Most often, the next question I am asked is, "I didn't realize there was such a thing as fertility law. Is there a need for that niche?"
My answer is a resounding YES! Although terms like I.V.F., ICSI, IUI, and surrogate may no longer be completely foreign to the general public, the legal issues surrounding them continue to be. With respect to surrogacy arrangements, there are relevant statutes and various provincial caselaw of which a lawyer needs to be aware, especially as the law relates to obtaining legal parenthood. Further, the issues related to the use of surrogacy as a method of ART are far-reaching in consequence and many may be overlooked without consulting a fertility lawyer. For example, a surrogacy agreement should answer questions such as, what happens if the intended parents separate prior to the baby being born? Can the surrogate mother put pictures of the baby on Facebook or other social media sites? Not only is it wise to enter into a surrogacy agreement prior to the embryo transfer (and, in some provinces, necessary), but through the process of drafting the surrogacy agreement, the parties have an opportunity to work out many of the potential issues that could present themselves months down the road. Most fertility clinics require that the intended parents and surrogate enter into a legal surrogacy arrangement prior to performing the embryo transfer. When in the process should I contact a fertility law lawyer?
As early as possible. Not only can fertility law lawyers provide you with legal advice, but they are often a great source for resources
. Some fertility lawyers will provide free consultations.