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.
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.