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
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?
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.
Happy 2012! Wishing everyone a fruitful year full of health, happiness, fulfillment and meaning.
Like many others, when New Years rolls around, I like to take a look into the past year and evaluate. Here is what stands out to me for 2011 for which I am grateful, among the other blessings in my life:
As you know, I practice fertility law. And, as you can imagine, I come across people daily who are struggling valiantly to deal with infertility and/or to build a family or help to build someone else's family through assisted reproductive procedures. Some people's stories are heartbreaking, others maddening and still others full of excitement and joy. All of the stories, though, are stories full of hope, love and longing.
To the fertility community who has embraced me with such open arms, to my clients both past and present who inspire me daily with lessons of hope, giving and trust - I thank you. I know that the role I play in your quest for children is small, but your role in my life is enormous. I am so grateful for the chance to make a difference, however small, in helping you build your family. Thank you!
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.