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.
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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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.