In Honour of Pride Week - Assisted Reproductive Technologies (ARTs) and the LGBTQ community

06/29/2012

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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

 Phone:
416-535-8501 x 7386

Email:
Lesley_Tarasoff@camh.net 

or see http://www.lgbtqhealth.ca/
cof_theatre_brochure_-_service_providers.pdf
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Dear Margaret, it's me, Sara

04/05/2012

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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?




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The biggest news in fertility law in Canada: Assisted Human Reproduction Canada scrapped - what does this mean for fertility law in Canada?

03/29/2012

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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."



 
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What is fertility law?

12/19/2011

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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. 




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