The Supreme Court of British Columbia released a landmark fertility law decision where, for the first time, sperm was held to constitute property at law. You can find the J.C.M.
. decision here
.Briefly, here are the facts of the case:A lesbian couple purchased sperm from a US sperm bank. Using this sperm, they conceived two children at Genesis Fertility Centre. The couple later broke up and divided up the assets of their relationship, but inadvertently failed to come to an agreement about the remaining sperm. The applicant, J.C.M., later met a new partner and wanted to use the remaining frozen sperm to conceive a child who was biologically related to her previous children. A.N.A. refused
to allow the use and instead asked that the cryopreserved sperm be destroyed. J.C.M. brought the application seeking a declaration that the sperm was her sole property.The Honourable Madame Justice Russell ordered that the 13 remaining sperm straws be divided between the parties.Here is what I had to say about the decision:
watch the brief video hereTake home point: while an important decision, I doubt that the issue of whether gametes are property at law is resolved by this decision. How would the judge have decided had the remaining donor gamete been a single cryopreserved egg that could not be divided? Would the decision have differed had the donor sperm not been purchased by the parties, thereby taking away any meaningful argument from the respondent that treating human gametes as property devalues and commercializes human tissue?
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?
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."
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.