As part of my job, I am often meeting with women who have acted as a gestational carrier (less often a traditional surrogate), when they sign their consent to a declaration of parentage naming the intended parents as the legal parents of the child she just carried, and a declaration of non-parentage re her parentage of this child. Twice in the past two or three weeks, I have met women who altruistically acted as gestational carriers...and then just kept on giving. While chatting with each of these women, they both informed me that after delivering the babies, they were pumping milk for babies who for one reason or another did not have access to breast milk (note that this was not for the babies these women carried). I continue to be truly humbled by the generosity of these women - yes, they are generous with their bodies, but also with their time, energy and their souls. You want to restore your faith in humanity? Chat with these ladies...
This past semester, I had the honour of teaching a weekly seminar about fertility law at Osgoode Hall Law School. Without a doubt, this is one of the most fun (yes, we all have different ideas of fun!) and meaningful experiences that I have enjoyed as a fertility lawyer. The class was a great opportunity to share ideas with people who are interested in the topic, but come at it with varying perspectives. We have one student with a strong science background who often reminds us of science's current limits, another who is very concerned about the privacy rights of donors, a student who approaches these issues from a property perspective, and another student who frequently makes use of her strong background in disability rights.
For any lawyer presented with the opportunity to act as an adjunct professor and teach a law school course - take it! It will remind you of why you went to law school, and make you look at everything you do with fresh eyes.
To my students - thank you! It was truly a pleasure. Stay in touch!
When I was speaking at the annual meeting of Canadian Fertility and Andrology Society earlier this year, I mentioned the echoing silence in Canada in terms of a debate about the ethics or safety of what is commonly referred to as Three-Person IVF (also referred to as Three-Parent IVF, a term I eschew, or mitochondrial-replacement therapy). This contrasts greatly to the lively debate within the United Kingdom, both within the House of Commons and within the UK's Human Fertilisation and Embryology Authority (HFEA), as well as the U.S.'s Food and Drugs Administration's panel which has investigated the safety of the process.
Three-Person DNA is a process whereby mitochondrial DNA (mtDNA) is removed from the genetic mother's egg and replaced with mtDNA from a donor's egg. This egg is fertilized with sperm to create an embryo. This process potentially has the ability to allow women with certain diseases which are inherited through mtDNA to pass on some of their genetic information without passing on the disease. Currently, about fifty genetic diseases are known to be passed on through a mother's mtDNA.
So, when there is such potential benefit to this therapy, why aren't we even having this discussion in Canada? Because it is very likely illegal. Pursuant to the always problematic Assisted Human Reproduction Act (the "AHRA"), section 5 (f) prohibits any person from knowingly altering "...the genome of a cell of a human being or in vitro embryo such that the alteration is capable of being transmitted to descendants." Of course, the entire purpose of Three-Person IVF is to alter the sex cell of the mother so that such alteration is inherited, and not the cell with the inheritable disease. In Canada, this is currently punishable by up to ten years in jail (!), and/or a $500,000 fine.
This is just another example of how the AHRA is failing us. The potential benefits, safety, and ethical implications ought to be debated and investigated, rather than silenced without so much as a whisper by a law enacted in another time.
To our family, friends, colleagues, former and future clients,
We wish you all a sweet and fruitful new year!
Thank you for all the blessings you bring to our lives. And to our clients, from the bottom of our hearts, thank you for allowing us to be part of the miracle that is building your family. It is our honour and pleasure.
Shana Tova U'Metuka,
I wanted to invite everyone to take a look at the Fertility Law Canada facebook page. Although I intend to continue blogging at this address, the facebook page (and twitter, too) serves as a microblog and is updated far, far more frequently. Both facebook and twitter also serve as a great opportunity to hear what the public is thinking about or how the general public, and not just the fertility community, react to stories. From my perspective, this insight is invaluable. I know that I am so caught up in the fertility community (I live, eat and breathe this stuff!), that the perspective from the non-fertility community may sometimes take me by surprise.
Regardless, I look forward to continued discussions, debates and information sharing with you. Thanks for all your support!
While Anatoly was at court this week bringing an application for a declaration of parentage on behalf of an intended parent, we were surprised to discover that the Honourable Justice Czutrin is no longer hearing applications for declarations of parentage in surrogacy and known donor situations. In December 2013, Justice Czutrin was appointed as Senior Family Judge of the Family Court (read about the recent appointments here).
While we congratulate Justice Czutrin on his appointment and look forward to appearing before the other judges who hear these matters, we must admit how much we will miss appearing before Justice Czutrin. In the specialized, controversial and emotionally charged world of legal parentage of children born through assisted reproductive technologies, appearing before the Honourable Justice Czutrin was a true pleasure. He managed to strike a balance between being forward thinking, realistic and pragmatic, while always, always considering the child at issue.
Applications for declarations of parentage in Ontario are almost always sealed. For this reason (and others), we have very little accessible caselaw. All the more so that Justice Czutrin's specialized knowledge and experience, as well as his viewpoint, will be sorely missed.
If you follow me on twitter or facebook, you know that I am very actively reading what is being written about surrogacy, egg donation, sperm donation, embryo donation and IVF in Canada and around the world, and I love to share this information with others who are interested in these topics, too. Once in a while, I come across something truly exceptional about third party reproduction in Canada that warrants more than a facebook or twitter post. Tonight I came across a blog that is a must read for anyone who is contemplating surrogacy in Canada (either as a gestational carrier or an intended parent).
The blog, called A Tale of Two Mothers - Journey through Canadian Surrogacy, is written from both the perspective of the gestational carrier, and the perspective of the intended mother. It highlights some of the emotional ups and downs and concerns from both points of view. This blog offers us a rare glimpse into these two women's thoughts, emotions, struggles and relationships. How privileged we are to be offered this insight!
Hello loyal readers,
You may have noticed it has been kind of quiet around here for the past number of months. I was on parental leave and am just getting back into the swing of the "extras", including this blog.
The reason I was truly able to take parental leave was because my partner, Anatoly Dvorkin, stepped in and worked with my clients in my absence. He did a fantastic job and discovered that he was both fascinated by the issues that develop in a fertility law practice and enjoyed the warm and personal relationships that develop in this area of law, too. So, although I am back and handling the majority of the fertility law files myself, Anatoly is going to stay on too and be available to fertility clients looking to work with him, in addition to continuing with his commercial litigation, business formation and technology practice. We think it is a great opportunity as Anatoly brings a different perspective to the area. You can read about Anatoly on the Fertility Law Canada website, or check out more detailed information about this general practice on the D2Law website. We look forward to helping you build families!
What Have we Done? AHRA as "Not in My Backyard" Legislation (which I expect will result in increased use of commercialized, anonymously provided donor ova from U.S. egg banks)
I'm in the midst of attending a conference where it is clear that most of the participants feel very strongly against both commercialized egg and sperm donation, as well as against anonymous gamete donation. These are not rare positions in Canadian circles, and are well-regarded in legal and other academic circles. In its most basic terms, the argument against commercialization of human gametes is that it is morally repugnant to put a price on that which creates life. The argument against anonymous gamete donation, at its most basic, is that it is not in the best interest of the children conceived from the use of these donor gametes who have the right to know their biological origins.
For years now, ever since the Assisted Human Reproduction Act became law back in 2004 and prohibited the purchase of donor gametes from a donor or a person acting on behalf of a donor, most donor sperm used in Canada has been imported via the US or other countries. Much of that sperm is paid for by the sperm bank in a jurisdiction where it is legal to pay for gametes. The sperm is then purchased either by an importer of sperm from Canada or directly by Canadian parents. Over the past couple of years, the same situation has become possible when it comes to donor eggs as the technology to vitrify and thaw the ova is now available so now there are not only sperm banks but egg banks too.
My best guess is that because of the restrictive and shockingly severe criminal sanctions in the AHRA (i.e up to 10 years in jail and/or $500,000 fine), more and more Canadian clinics and patients are going to turn to importing donor eggs as opposed to going through donor ova cycles here. To make a long story short, whether or not this is legal is a nuanced answer where the devil is in the details but suffice it to say that I think it is possible to carefully work within the confines of the AHRA to import ova into Canada in a legal manner.
The problem? Here it is: At this point, most egg banks in the US offer only anonymously donated eggs (it seems to me that the push to use known or open-i.d. gametes is generally much stronger in Canada than the U.S.). Further, my best guess is that all of the egg banks pay the donors for the eggs. Accordingly, in a quest to prohibit commercialized gamete donation and anonymous donation, we have pushed Canadian clinics and parents toward what many will undoubtedly see as a legally preferable process than trying to negotiate the legislative minefield that is the AHRA (which fails to clarify what is an appropriate reimbursement with the potential penalty ranging from 5-10 years in jail and/or $250,000-$500,000 in fines) which will likely result in far increased use of ova which were paid for in the U.S. and provided on an anonymous basis. Further, whereas when a donor in Canada goes through an egg donation cycle, we know she has publicly funded health care available to her, we can monitor the quality of her care, there are laws specifically targeted to ensure that she consents to the procedure, there is a legal system available to her if she were to suffer damages, there are resources (such as lawyers, psychologists, etc.) available to her, etc., We lose all such control over the process of egg donation and the resources available to a donor when the donation cycle happens outside of our borders. So, while the criminal provisions of the AHRA may end up keeping our backyard clean, it is at the loss of being able to do a better job with a uniquely Canadian perspective and bent regarding assisted reproductive technologies at the expense of the donors and the children born through the use of donor gametes.
Pratten denied leave to appeal to Supreme Court of Canada - no prohibition on anonymous gamete donation in Canada
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.