Last week, the issue of some Canadians aborting female fetuses as a means of sex selection and how to prevent this returned to the forefront of fertility law headlines. Dr. Rajendra Kale, the then-interiim editor of the Canadian Medical Association Journal, reignited this hot topic by publishing his editorial entitled, "It's a girl!" - could be a death sentence
. In his opinion, gender based abortions are an evil propagated by some Asian communities, and is unacceptable in Canada. His solution to stopping this practice is to deny all Canadian parents access to information about the gender of a fetus until about 30 weeks, at which time it is extremely difficult to get an abortion.
Dr. Kale's editorial set off a media storm about the practice of female feticide in Canada, and the merit of Dr. Kale's proposed solution. See these related articles from the National Post
, the Toronto Sun
and The Globe and Mail
and perhaps as interesting, see the readers' comments. As would be expected, there were and continue to be many vocal opinions shared across Canada on this subject.
Andre Picard responded to Dr. Kale's piece with an editorial of his own in his column in The Globe and Mail. His editorial, Sex Selection is a Complex Issue with Many Nuances
is bang on in that, with respect, Dr. Kale's proposed solution is overly simplistic and fails to address the root of the problem. While it may seem that the issue of sex selective abortions is black and white, it is actually quite nuanced and brings up other important issues relating to multiculturalism, tolerance, reproductive freedoms and feminism that Dr. Kale's solution disregards. Despite many readers comments to the contrary, just as being a pro-choice advocate is not equivalent to being a pro-abortion advocate, disagreeing with Dr. Kale's proposal does not make one pro-sex selective abortions. Now putting on my fertility lawyer hat, what I find truly absurd is that sex selective abortions are legal in Canada, but engaging in PGD (pre-implantation genetic diagnosis) or embryo selection in order
to implant embryos of a particular gender (except for the purpose of preventing, diagnosing or treating a sex-linked disease) is a criminal act carrying with it the penalty of up to ten years in jail and/or a $500,000 fine (see sections 5 and 60 of the Assisted Human Reproduction Act
). To my mind, if people are going to select the gender of their child, is it not ethically more acceptable that they do so at the embryonic stage, prior to the existence of a fetus, instead of aborting a fetus? If we think like Dr. Kale, the simple solution, then, would be to criminalize sex-selective abortions in a similar manner as we criminalize engaging in procedures to determine the gender of an embryo. But just like Dr. Kale's proposed solution was overly simplistic, so too is this solution. We can only imagine the repercussions of criminalizing sex-selective abortion, and regardless, it would be all but impossible to develop a system to determine which abortions were only performed for the purpose of sex selection, and no other purpose that is legal (such as not wanting a baby at all). Instead, to rid the law of this absurdity,
we should allow the lesser evil (if it is an evil at all), which is selecting embryos of a certain gender to implant instead of forcing those who will engage in sex selection to abort fetuses.
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.