This coming Tuesday, February 4, 2020, the new Safety of Sperm and Ova Regulations (the "Safety Regulations") come into force.  For the first time, Canada will not only be regulating the donor sperm imported and used in Canada, but will also be regulating donor ova.  There are many implications to these new regulations, but I want to focus on one in particular that hasn't received a lot of attention and may in fact be unintentional: the Safety Regulations are putting into place requirements that make it possible to trace donor ova and sperm between the donors and the recipients and back.  That, coupled with requirements to keep records about the donor's health and genetic screening or testing, has the potential to provide more medical information to donor conceived people than is currently available to them, at least in some cases.  

There are a number of stakeholders, myself included, who believe that a mandatory donor registry is of critical importance.  My ideal donor registry would most certainly collect, store and distribute more information than the Safety Regulations provide for, including an ability to count the number of cycles a particular donor participates in, the use of the gametes from a specific donor within a specific population, and provide the ability for donor conceived people and their parents to connect with other families who used gametes from the same donor, if they so desire.  Following the Reference re Assisted Human Reproduction Act decision, though, I believe that this infrastructure, must come from the provincial government, and would likely be relevant only to donations which occur under that province's jurisdiction (i.e. provincial donor registries may not include donor gametes imported from other jurisdictions such as the US, which currently make up a very large percentage of the donor gametes used in Canada).    

There are problems with using the Safety Regulations as the foundation for a donor registry, including that the Regulations only require that records be kept for ten years after the donor gametes were last used. Further, it is not clear whether the government has any intention to allow this information to be accessed by parents of donor conceived people or the donor conceived people themselves, as such access is not contemplated by the Safety Regulations.  While these may be baby steps, they are steps in the right direction requiring government to ensure that information that is important to donor conceived people is safeguarded for them in the future.  If this ever was to lead to a donor registry, the provincial governments will have to pick up the mantle and move forward.

Yesterday, Theresa Boyle of the Toronto Star published an article lauding Health Canada’s initiative to add further regulations and requirements for both donor sperm collected in Canada, and international donor sperm imported into Canada, as well as the extremely welcome move of relaxing the regulations for known donor sperm (also known as directed donation).  I take no issue with Canadian (and/or provincial) moves to protect Canadians from avoidable health risks, and believe that laws such as those dealing with health regulations should be updated frequently as new technologies emerge and best practices change. That being said, there is a larger picture issue that is being missed here that needs to be examined: as long as the Assisted Human Reproduction Act (the “AHRA”) prohibits compensating sperm donors, Canada will continue to be completely reliant on the will and policies of jurisdictions other than our own, and Canadians need to understand what that effectively means.

I have lectured frequently on this topic.  In the past year alone, I have spoken about it at Osgoode Hall Law School, McGill University Faculty of Law (where I had the opportunity to chat with MP Anthony Housefather, who has brought welcome attention to this important topic), and the National Family Law Program.  However, these issues need to be understood not only by the academia but the public at large. Canadians should be aware of just how harmful the AHRA is to Canadians (most notably to the donor-conceived children) so that the AHRA and the related social policies can be properly re-evaluated. 

The current on the ground reality in Canada is this: If you need to use donor sperm, you have a few options. If you do not have a known sperm donor willing to provide sperm and/or are unwilling to take on the significant legal risk to the security of your family (depending on the province in which you reside), you then look to a sperm bank.  Since 2004, when the AHRA came into force  making compensating a sperm donor illegal and punishable by up to ten years in jail and/or a fine of $500,000, all of the national sperm banks across Canada have shut down, with the exception of Repromed in Toronto.  Despite Repromed’s significant efforts in trying to attract more altruistic sperm donors, today Canada’s only sperm bank is down to about 20 donors.  That means Canada has about 20 sperm donors to service the reproductive needs of an entire country.  And, if you or your partner are non-caucasian and would like a specific racial background or heritage reflected in the genetic makeup of your child,  you are down to a couple of donors at best – the same couple of donors as are available to everyone else in your community.  Or, if you are part of a specific community that tends to make a lot of use of donor sperm, such as the lesbian community, you should understand that many people in your same community will be conceiving children using the sperm of the same 20 donors, too.  And of course, those same 20 donors’ gametes are used again and again and again. How could we restrict the number of times a specific donor’s gametes are being used when there are so few donors to go around? As long as the AHRA continues to criminalize compensating a sperm donor, this situation isn’t likely to improve in any significant way. 

The next option you might consider is importing sperm from a sperm bank outside of Canada. By far, most Canadians who use sperm from a sperm bank use imported sperm from the United States, or to a lesser extent some European countries.  Of course, this sperm is anonymously donated or at best open-identity release (meaning that a donor conceived person upon reaching the age of majority can reach out to the sperm bank and find out information about the donor. This, of course, is governed by contract and not regulated, so we had better hope that the sperm bank is still in existence at the time, and that the donor and the bank have not lost contact).  It is effectively impossible for any province to create a donor registry of any sort (including a donor registry of non-identifying information) for sperm imported from other countries. And the irony (absurdity!) is that all this imported sperm is paid for anyways – the recipients are purchasing the sperm and the donor was paid by the international sperm bank, all legally under the AHRA as long as that original payment didn’t happen in Canada.  You might notice that all of the Canadian values and overarching policy concerns including the health and best interests of the child have been thrown out with the bath water by now. 

Of course, Canada should require that imported gametes meet certain standards to protect the health and safety of Canadians.  However, Canada is effectively trying to bend the US sperm banks to our will and our policy, even though US policy and law doesn’t require or expect the same.  For example, the US does not seem to require that a US sperm bank review the medical records of a donor or perform some types of testing that Health Canada would require. Should the US sperm banks be doing so? I might think so and you might think so, but under US law it currently isn’t required and US policy seems to permit the sperm banks to contract out of this.  Despite this, Canada could attempt to bend US policy to our will except for two small but important points: 1. We need them. We have almost no donor sperm in Canada. And 2. The Canadian market is relatively small and it doesn’t necessarily make economic sense for these sperm banks to meet the more rigorous standards Canada imposes.  This would not be the first time I have seen international sperm banks decline to work with Canada or decline to continue to work with Canada because of the difficulty in working with the Canadian requirements.  The result being, of course, even less donor sperm available for use by Canadians. 

Don’t misunderstand me – I am all for the reasonable, effective regulation regarding donor gametes in Canada and those imported into Canada. But we can only do that properly and effectively with Canadian gametes (international sperm banks won’t necessarily want to or have reason to play by our more stringent rules). And to get a reasonable number of Canadian donor gametes available, we are going to have to jettison the prohibition on compensating gamete donors in Canada. Personally, I would rather see a sperm donor paid a fixed $200 per donation and be able to regulate effectively, than continue with this mess we are currently in.

Canada, it is time to admit that the AHRA is a failed experiment. Any “good” created by not permitting the purchase of sperm from a donor in Canada is far outweighed by the absurdity of a situation where we instead use sperm from compensated donors anyways, and have no real opportunity to self-regulate in a way in line with all the other related Canadian values.

Dear Ontario,

We have a lot to celebrate. For a long time now, we have hung our heads in collective shame about the gross discrimination and lack of family security and recognition provided to any family that uses donor gametes (eggs and/or sperm) or donor embryos to conceive a child. The discriminatory law was particularly egregious in the case of two-mom families but was problematic for many types of families. The All Families Are Equal Act (the “Act”) rectifies Ontario's discrimination, allows for non-heteronormative presumptions of parentage (for the most part) so that a non-carrying parent need not adopt their own child, and provides much needed clarity that a donor is not a legal parent.

However, along with these important and positive steps, the Act touches on other aspects of family building in Ontario that have not been discussed in the media and warrant greater examination.  In particular, with the notable exceptions of requiring a written surrogacy agreement and independent legal advice for all parties involved (both of which I fully support!), the All Families are Equal Act makes some drastic changes to surrogacy law in Ontario that I believe are misguided and ought to be reconsidered. 
Let's look beyond the soundbytes and the media headlines, and see what the Act actually says.

How the All Families are Equal Act (Bill 28) Hurts Surrogacy in Ontario:

1.   The All Families are Equal Act does not distinguish between gestational surrogacy and traditional surrogacy, and makes all surrogacy arrangements unenforceable.

Gestational surrogacy is where the person carrying the fetus on behalf of someone else has no genetic connection to the fetus, and can only be achieved using in vitro fertilization (IVF).  Traditional surrogacy is where the person carrying the fetus on behalf of someone else has a genetic connection to the fetus, and can be achieved through insemination (at home or in clinic) as well as IVF using the surrogate's own ova. The empirical evidence (although incomplete) and certainly the anecdotal experience is that almost all of the surrogacy happening in Ontario is gestational (I would guesstimate at least about 95%), and about half of the intended parents in my practice are cisgender male same-sex couples. As a rule, gestational surrogates almost never change their minds regarding the parentage of the child, while traditional surrogacy is frequently far more volatile and risky.

Prior to the Act, we understood that gestational surrogacy agreements in Ontario were largely enforceable, while traditional surrogacy agreements were not (this is in line with many progressive Canadian and US jurisdictions). This meant that in the extremely rare situation of disputes between the parties about parentage, Ontario courts could be expected to uphold a gestational surrogacy agreement, but not a traditional surrogacy agreement. The All Families are Equal Act, though, specifically legislates that any surrogacy agreement, whether gestational or traditional, is unenforceable (although it may be used as evidence of intention). Further, if there is a dispute between the parties as to the parentage of the child, the court is legislated to determine parentage based on the best interests of the child.  By failing to distinguish between gestational surrogacy (where pre-conception intention has applied) and traditional surrogacy (where the family law ideal of the best interests of the child has applied), The All Families are Equal Act makes gestational surrogacy as legally precarious as is traditional surrogacy. This is problematic both for the parents, who no longer have the security they previously enjoyed, but also for a gestational surrogate who may want to enforce an agreement as against the intended parents but may no longer be able to do so as a result of this legislation. 

Supposedly, the All Families are Equal Act is based on British Columbia law. However, the proposed Ontario legislation is not in accordance with the B.C. legislation, which does not provide that a surrogacy agreement is unenforceable and does not require parentage disputes in surrogacy to be determined on a “best interests of the child” test.  In this regard, the Act is, unfortunately, more in line with less progressive jurisdictions such as Alberta, and is a serious loss for all parties involved in gestational surrogacy in Ontario, resulting in less secure family building and likely, more unnecessary litigation and expense.  This aspect of Ontario’s proposed legislation should be rectified by simply removing the statement that surrogacy agreements are unenforceable.

2.  The All Families are Equal Act follows an adoption and not third party reproduction Model, which will lead to greater confusion at the time the child is born.

The All Families are Equal Act legislates that a surrogate (gestational and traditional) has at least seven days to change her mind about parentage, and requires joint medical decision making between the parents and the surrogate in the interim (unless the surrogacy agreement, which is unenforceable (?!), requires otherwise).  This is an anomaly that seems to come out of left field, based on a model more akin to adoption than third party reproduction. How are Ontario hospitals going to treat a surrogate under this Act in terms of the consent required to treat a child after birth? What happens when there is a dispute between the parties in terms of medical decision making after birth? What happens if the surrogate cannot be found or is unavailable to make medical decisions? Currently, Ontario hospitals largely respect the wishes of intended parents after the birth of a child through surrogacy, but will no longer be in a position to do so for at least 7 days after the child's birth. Is the hospital really in the best position to decide what the surrogacy agreement does and does not say?

3. The All Families are Equal Act Eliminates any Oversight over Surrogacy, Provides an Opportunity for Fraud, and Sidesteps Ontario’s Obligations to Children

Currently in Ontario, all intended parents (regardless of sexual orientation, gender, and number of parents) must bring the same court application (or other legal process) in order to be recognized as the legal parents of a child born through surrogacy. This is true for both gestational and traditional surrogacy.  Toronto judges require an in-person hearing, while some other Ontario judges have permitted over the counter applications, saving on costs and court resources.  Although not required by statute, Toronto judges frequently also require that DNA evidence be provided. Because Ontario does not require that intended parents have any genetic connection to the child born through surrogacy in order to be recognized as the legal parents, the DNA testing is performed simply to ensure that the conception occurred in line with the pre-conception intention of the parties and in the case of gestational surrogacy, was in fact conceived through IVF.  In addition to ensuring that the child was conceived in accordance with the pre-conception intention of the parties, Ontario judges currently ensure the consent of all parties, and ensure the legitimacy of the process, prior to declaring that a person who carried a child is not a legal parent of the child. 

The All Families are Equal Act completely eliminates any judicial oversight or other types of checks and balances over surrogacy in Ontario, instead relying on the parents and the surrogate themselves to confirm that the parties had a written surrogacy agreement in place before conception, that all parties had the benefit of independent legal advice prior to conception, to ensure that the pre-conception intention of the parties has been met (i.e. this is a child conceived through surrogacy and not otherwise) and finally that the surrogate consents to relinquishing the child to the parents after the birth of the child.  I assume the elimination of any meaningful oversight was a well-intentioned effort to remove any roadblocks to parenthood for intended parents.  While the federal government is (wrongly, in my opinion) adding teeth to its legislation that criminalizes compensated surrogacy, Ontario is taking the exact opposite approach, demonstrating that it believes absolutely no oversight of any kind is necessary.  This opens the door for fraud and coercion with respect to parentage that I believe has largely been avoided as a result of the judicial oversight, as well as ruining the legitimacy of surrogacy in Ontario.  With respect, I believe Ontario is grossly misjudging the on the ground reality, the desperation of people who want children and the vulnerabilities of the parties, and is sidestepping its significant obligations and duties to children and women.
In the course of my practice, on a number of occasions, I have seen first-hand how judicial oversight, or more accurately, the knowledge that a judge will be reviewing evidence before making a parentage order, has meant the difference between fraud and legitimacy.  For example, I have had potential clients come in for a meeting requesting that I assist them with a declaration of parentage for an alleged traditional surrogacy where the “surrogate”  is about to give birth. When I advise that DNA testing will be required and that a court process will be involved, the potential clients admit that this is not in fact a surrogacy arrangement but that they found a pregnant woman who supposedly wants to relinquish her child and they would like to become the child’s parents without going through Ontario’s adoption process.  Of course, in these cases, I have refused the retainer and the plan of the potential clients is thwarted, but had there been no court oversight, Ontario would have made these people the parents of the child. And, of course, what does this mean for adoption in Ontario? As the Act requires no oversight and has no accountability, but instead relies on the parties themselves to register, there would be nothing to stop people from engaging in fraud such as that described above, or to ensure that consent was provided without duress, or to ensure that the extremely minimal requirements required by the Act (such as a written agreement and independent legal advice for all parties) have in fact been met.  Surrogacy in Ontario has been legitimate because of this judicial oversight.  Although the vast majority of intended parents conduct themselves ethically and appropriately, it is naïve and unrealistic to fail to recognize how desperate some people are to have children, and that some women are in fact vulnerable. 

Under the Act, there is no oversight of any kind, and there is no accountability.  How easy is it to ask people desperate for a child to register that they had independent legal advice and entered into a pre-conception legal agreement when there is no one verifying the accuracy of this? How easy could it possibly be to coerce a person to sign a registration document when there is no oversight to ensure there was no duress?

My personal belief is that judicial oversight should be necessary and is appropriate in all surrogacy situations when changing the legal parentage of a child from one party to another, whether gestational or traditional.  However, if Ontario decides that the process should not involve judicial oversight, there is middle ground to be explored which provides more accountability and therefore may provide further safety and integrity of the system.  For example, the State of Illinois has a process in place for administratively registering the birth of a child born through gestational surrogacy. Assuming minimum standards are met (including each party having separate legal representation, medical screening and psychological screening), the parents may register the child’s birth in the name of the parents (with the surrogate’s consent), but only with the certification of each party’s lawyer that the party received independent legal representation and that a written agreement was entered into, and with certification from the IVF doctor that this child is not genetically related to the surrogate and was conceived through embryo transfer.  At least in this way, someone is accountable, even if such a system is likely to fall short as compared to judicial scrutiny.  Notably, as a practical matter, leading Illinois counsel advises me that it is typically only heteronormative, domestic families who choose to use the administrative process, and that international intended parents and non-heteronormative families choose to seek a declaratory process so that they can obtain an order and not just a birth certificate (unfortunately, many international jurisdictions are not as friendly to same-sex parentage or parentage through surrogacy as are Illinois and Ontario).   With a traditional surrogacy, Illinois offers no administrative process so as to protect the integrity of the process and the security of the family for the reasons I have mentioned above, and permits it only for gestational surrogacy where fraud is less likely and other professionals may be relied upon to be accountable. In my opinion, it is especially concerning and misguided that Ontario intends to allow parentage through traditional surrogacy without any court oversight, and threatens the entire legitimacy and security of parentage in this province.

Ontario needs to concern itself with protecting the integrity of the surrogacy process and parentage.  Ontario needs to ensure that a person has not been coerced into giving up her child, and that the child is one who was conceived to be parented by the intended parents and not the surrogate.  Undoubtedly, Ontario has the best of intentions, but unfortunately I believe this lack of oversight will eventually prove to have unintended and unwanted consequences and undermine a process that helps countless parents and that currently has growing moral legitimacy that could evaporate if under-regulated.

4.         The All Families are Equal Act Discriminates Against Children Born Through Surrogacy by Failing to Protect their Privacy in the Same Manner as Ontario Protects the Privacy of Adoptees

The Act provides that s. 70 of the Children’s Law Reform Act (the “CLRA”) will apply to declarations for parentage and non-parentage.  Section 70 of the CLRA requires the court to consider whether an order should be made limiting access to the court file and/or prohibiting the release of identifying information about the parties to the court proceeding or any individuals mentioned in the court documents. That the Act incorporates s. 70 of the CLRA is a positive step; however, it falls short of what is required by failing to direct the court to seal applications of parentage and non-parentage with respect to parentage through surrogacy as Ontario does with respect to adoptees.  Section 70 simply requires the court to consider whether it is appropriate to restrict access to the court file and prevent the release of identifying information. It is discretionary; by failing to direct that the record be sealed, it does not ensure that the privacy of the children and the families involved in these proceedings will be protected.

In Ontario, there are already strong statements of law from court establishing that there is no public interest in parentage applications. Most recently, in addressing an amendment to a Practice Direction requiring that notice be given to the media in any case where a party requests that public access to a court proceeding be restricted unless otherwise ordered by the court, Madam Justice Kiteley of the Superior Court of Justice noted that legislation requires that information be kept confidential after an adoption order is made and that children subject to protection proceedings have the benefit of a statutory ban on publication. Kiteley J. opined that although children who are the subject of parentage applications have no such protection, there is no justification for the differential treatment.  In light of Madame Chiappetta’s consent order in the Grand Charter challenge, this differential treatment is discriminatory.

This, together with the real possibility of harm to children (and their families) who are the subject of parentage applications and the lack of any legitimate public interest in the private information contained in the documents provided by the parties involved in parentage applications is sufficient to warrant a legislated guarantee of privacy for the subject individuals, equivalent to that of adoptees. The All Families Are Equal Act should therefore go further than incorporating s. 70 of the CLRA by requiring that all court files related to parentage applications be sealed and anonymized without the need for the parties to convince the court that such an order is appropriate.
 
5. The All Families are Equal Act Permits Sperm Donation Through Sex Which May Result in Unintended Consequences for Surrogacy in Ontario.
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Almost as an aside, it is worth bringing to the public’s attention that the All Families are Equal Act permits sperm donation through sex where there is a pre-conception written agreement making the donor not a parent.  This is an extremely marked departure from any provincial law in any jurisdiction in Canada, or most (if not all!) progressive jurisdictions internationally.

I won’t go into the reasons why this ought to be concerning as a policy or what this could mean for single women, as I will leave this to the traditional family law lawyers to comment on (or for another blog post!).  Instead I will focus on my area of expertise, which is fertility law. First, though, I think it is important to mention that we ought to consider how significant is the need or ill to be rectified by changing our law in this way.  Considering the Act would already recognize a sperm donor through an at-home insemination not to be a parent (as it should), I fail to see why this seismic change to our law is necessary when there are so many people who stand to be harmed by the blurring of the line that child conceived through sex = parent. Obviously, permitting sperm donation through sex adds further uncertainty to the question of whether a person is a donor or a father. Will men force women to sign such a document? What happens if at some point in a relationship the sperm donor agreement was in place, but now a sexual relationship has developed outside of the donation? Clearly this will lead to less secure family building and will be ripe for litigation.

For the purposes of this article, though, more on point and more interesting, is what this law could potentially mean for the future of traditional surrogacy: if, further to the Grand consent order of Madame Justice Chiappetta, parentage law in Ontario cannot discriminate on the basis of sex, gender or manner of conception, how can Ontario have a law which permits a man to be a sperm donor through sex, but not permit a woman to be a traditional surrogate through sex? This aspect of the All Families are Equal Act looks ripe for a Charter challenge to me, and I cannot see the legal basis to permit a man to be a donor and not a parent through sex and not a woman.  Is this a road Ontario wants to travel? And if successful, is it possible for a man to contract out of being a parent through sex, and a woman to contract out of being a parent through sex, too, leaving no legal parent to a conceived child? Food for thought and worth considering – fodder for a future blog article.

This weekend, I had the great pleasure of speaking at a new peer-led support group in Toronto called Eggxtra Support along with my dear friend, Jan Silverman.  There are a number of reasons I want to share this experience with you. The first is to get the word out - I have had a plethora of requests from clients who are looking for support groups for people using donor ova (donor eggs) to build their families.  IVF is stressful on its own.  Adding donor gametes to the equation adds many further levels to consider, both in terms of issues to work out, expenses, ethical considerations, legal issues, etc.  I can't tell you how valuable I think it is for groups like this to exist and to provide a judgement-free and supportive space.  The group does not yet have a website, but here is an email address for those interested: [email protected].  Hopefully this group will continue its excellent work, and other similar groups can form around the country or remotely.

The other reason I wanted to discuss this - although I always encourage my clients involved in third party reproduction to also work with some excellent counsellors, psychologists or social workers before moving forward with using donor gametes (donor eggs, donor sperm or donor embryos), I am usually outside of this part of the process. I want to express my gratitude for being included.   Although I am blessed to frequently have very warm relationships with my clients, it is a different experience entirely to hear about people's fears, concerns, and feelings outside of the formal, legal relationship.  While I hope that I taught the attendees something about the legal aspects of using donor eggs in Canada, they certainly reminded me exactly why it is that I do what I do.  I was so touched by and impressed with the supportive environment they created for each other, how mindful of the interests of the child and the donor, and thoughtful they were about their decisions.  Thank you for including me!

If you are thinking of attending, but are shy, I encourage you to do so. I think it will be well worth your time.  If you are too far from Toronto to make it to the meeting, please write the email address above and see about how you can participate remotely.

For those of you who haven't heard, Cheri DiNovo (Ontario NDP Party) has brought a private member's bill, Bill 137 (Cy and Ruby's Act (Parental Recognition)).  When it passes, as it should, and which I have no doubt it will, Cy and Ruby's Act will completely revamp the legal parentage framework in Ontario.  I have received many emails and phone calls asking what I think about the bill, so here it is:

If I had to choose whether to accept Cy and Ruby's Act exactly as it is, or not accept the bill at all, I would be willing to take it exactly as it is, no questions asked.  The inequity and discrimination in the current legal parentage system in Ontario, especially as it relates to two-mom families and to a lesser extent, single mothers, needs to be fixed immediately. I have blogged about this here, been invited to speak about this on Global News' Focus Ontario here, met with Ontario policymakers about legal parentage issues in Ontario, repeatedly lectured on the issue, and even once had the opportunity to briefly discuss this with Andrea Horwath. Ontario is desperately in need of a legislative regime that recognizes that a donor is not a parent only by virtue of the donation, allows both parents in two-mom families to be registered directly on the birth certificate when using a known sperm donor, and brings presumptions of parentage outside of hetero-normative family building.  Cy and Ruby's Act accomplishes these objectives.

Further, Ontario has been very fortunate to benefit from a number of excellent and often groundbreaking legal decisions, which Cy and Ruby's Act takes into account. For example, Ontario courts have recognized three plus parent families, and have determined that there is no need for a genetic connection between any intended parent and a child born through assisted reproductive techniques.   This bill appropriately supports such families, and relies on intention-based legal parentage. So far, I'm all for it.

The harder part is the surrogacy piece.  

A little bit of background:

1.  Currently in Ontario,  gestational surrogacy agreements (where the person carrying has no genetic connection to the child) are seen as largely enforceable, while traditional surrogacy agreements (where the person carrying is genetically related to the baby) are unenforceable. This is in line with pretty much all of the more progressive North American jurisdictions that recognize legal parentage through surrogacy;

2. In Ontario and across Canada, third party reproduction (including and especially surrogacy) is seen as so potentially coercive that payment to a surrogate for her services and payment to someone arranging the services of a surrogate mother are prohibited and punishable by up to ten years in jail and/or $500,000 (whether I think it is appropriate policy to criminalize what a person chooses to do with their body, or whether I believe this is how Canada ought to deal with the potential for coercion is better left for another time); 

3.  There is a lot of surrogacy happening within Ontario. As international borders have closed in India, Nepal, and Thailand over the past year or so, the number of international gestational surrogacies happening within Ontario (i.e. international intended parents and Ontario gestational carriers) seems to have greatly increased. This is big business!; and

4. Cy and Ruby's Act equates, or at least conflates, traditional surrogacy with gestational surrogacy. I don't necessarily have an issue with traditional surrogacy, but I am aware that traditional surrogates tend to change their minds more frequently than do gestational carriers.
 
Within the above context, I am uncomfortable that Cy and Ruby's Act provides that an agreement, including a prototypical form surrogacy agreement provided in the regulations, may be used as evidence of the surrogate's intentions, without requiring that she first obtain independent legal advice (NB: the timing is important - a surrogate takes much risk during the pregnancy and should be appropriately counselled prior to entering into a surrogacy agreement).  

To address this, I respectfully suggest two small, friendly amendments to encourage better and more ethical practices that I believe will ultimately provide more secure families. They are simple:

1. provide that the surrogacy agreement may not be used as evidence of a surrogate's intention unless she obtains independent legal advice about the agreement prior to its execution; and

2. instead of providing a form prototype surrogacy agreement in the regulations (i.e. oversimplifying the process and trying to make surrogacy "one size fits all"), require that surrogacy agreements meet certain criteria to promote well-thought out arrangements and meaningful negotiations and consent.

Of course, one of the difficulties in evaluating the bill as it relates to surrogacy is that its success or failure is largely reliant on a prototype form surrogacy agreement which is not currently available for discussion, as it is to be provided for in the regulations.  On the face of it, a prototype agreement sounds like it could help people without access to legal services. However, given the complexity of surrogacy and the competing interests of the individual parties, it's hard to believe that a form agreement would be sufficient, meaningful, and take into account the intricacies and differences between the many different situations. For example, traditional surrogacy arrangements between friends looks very different than do gestational surrogacy agreements with international intended parents, and that is just the tip of the iceberg (think about what issues we want to consider for someone transferring two or three embryos, or where an intended parent is Hepatitis C positive, or when the surrogate is in the process of separating from a partner or is polyamorous, or when the parents live abroad and the child will not have access to funded public health care and what this may mean for the surrogate, etc.). Although surrogacy is frequently a beautiful, collaborative process, there is no one size fits all solution, and the parties' intentions are rarely, if ever, exactly aligned.   Further, regulations are unlikely to be quickly or frequently updated, so a prototype surrogacy agreement will soon be outdated and cannot realistically stay on top of current best practices (whether these be legal or medical).  These are probably some of the reasons why no other progressive jurisdiction that recognizes surrogacy has government-provided prototype form surrogacy agreement (although a number of such jurisdictions require certain criteria be met, including independent legal representation, psychological counselling and a required exchange of medical information).
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Regardless, we won't be able to truly evaluate this prototypical agreement until we see it, but we won't see the regulations until after the bill passes, and my limited understanding of the regulatory process is that we (the public) and our respective MPPs will have little opportunity for meaningful contributions during the regulatory process.

Finally, it is insufficient to offer a surrogate independent legal advice only at the end of the process, after the baby's birth (if independent legal advice is offered at all). It is far more appropriate to offer a surrogate independent legal advice prior to conception, before she has undertaken medical and psychological risk.  Unfortunately, in trying to make surrogacy accessible, I am concerned that the bill inadvertently encourages bare minimum standards as opposed to best practices, and will unintentionally lead to insecurity in the very families it is trying to protect.

So, back to the original question – do I support Cy and Ruby’s Act? Unequivocally, yes.  Ontario cannot continue one more day with such inequities in our families. I sincerely hope, though, that the Ontario government will deal with family building through surrogacy in a way that promotes meaningful and informed consent, respect for women, and best practices. At the end of the day, that is the only way to make truly secure families through surrogacy, and to do it ethically. 

....

I'm no legislative drafter, but here are what my proposed amendments would look like (I would leave the rest of the bill as is). The reference to independent legal advice for a surrogate could potentially be dealt with in the regulations, but I have included it within the bill itself for the reasons mentioned above.  

The Assisted Human Reproduction Act (AHRA) came into force in 2004.  Section 6 of the AHRA prohibits paying a surrogate for her services, and section 7 of the AHRA prohibits purchasing ova, sperm or embryos from an egg donor, sperm donor or embryo donor or from a person acting on behalf of a donor.  Section 12, though, permits reimbursement to the donor or the surrogate, only for reasonable out of pocket expenses incurred, in accordance with the regulations.  However, from 2004 until now, we did not have regulations or even an inkling about what those regulations would look like if drafted...until today.

The Canadian Standards Association (CSA) provided a draft of the proposed regulations.  They are open for public comment until September 15, 2015. You can access them and comment here:

French: http://publicreview.csa.ca/Home/Details/1651

English: http://publicreview.csa.ca/Home/Details/1650


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I am certain over the next little while, I will have more to say about the substance of the proposed regulations.  At this point, though, I want to express my disappointment that this is the route taken to regulate fertility law in Canada.

The AHRA has been a failure from the beginning. Canada tried to take control on a federal level and in order to do so, needed to use the federal criminal power.  Huge swaths of the act were struck because they were found to be properly within the provincial, and not federal, jurisdiction.  

Continuing to regulate fertility treatments in Canada in the sphere of criminal law as opposed to health law by the provinces is a mistake, and I think it should be obvious by now.   

"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." (para 231, Supreme Court of Canada Reference re Assisted Human Reproduction Act).

Jurisdictions that over-criminalize commercialized third party reproduction leads to situations like Baby Gammy, and the current Australian story of intended parents abandoning one of a set of twins born through surrogacy in India because the parents decided they only wanted one child of a specific gender.  For third party reproduction to be ethical and safe for all parties, we need to make sure we can take care of our fertility needs in our own country.  Spending money adding teeth to legislation which criminalizes intended parents involved in surrogacy or gamete donation is wrong-headed. The same money should instead be spent supporting provincial regulation. Worry more about important things like donor registries, reporting OHSS levels and modernizing parentage laws, and worry less about whether or not a sperm donor is paid for a donation.

What a waste.  What a mistake.

Today, June 10, 2015, marks twelve years since Ontario became the first province in Canada to recognize same-sex marriages.  While Ontario led the way in 2003, it now lags behind many other provinces, including British Columbia, Alberta and soon Manitoba, in providing legal security regarding parentage in those same families. Ontario has failed to update its legislation to recognize the parentage of children conceived through the use of assisted reproductive technologies in the LGBT community (and sometimes in hetero-normative families, too).  

Lesbian women (or single women, regardless of their sexual orientation) are perhaps the most vulnerable parents in Ontario, especially those who choose to use a known sperm donor.  There are so many good reasons to use an altruistic, known sperm donor.  Where a heterosexual couple uses the help of a known sperm donor to conceive, the mother is legally protected and the father has the benefit of a presumption of paternity by virtue of his relationship to the mother.  However, where a lesbian couple uses a known sperm donor, the carrying mother is legally the mother, but the non-carrying mother has no  presumption of parentage and in fact cannot legally be registered on a birth certificate as a parent without taking further legal steps.  And, the sperm donor, by virtue of his genetic connection to the child, may be legally the father of the child (unless further steps are taken to sever any legal rights or obligations the donor may have. In contrast, no such further steps are generally necessary in a heterosexual family using the known sperm donation).  

If Ontario wants to make the use of altruistic known donors an attractive option, and there are many policy reasons that it ought to, then it needs to change its legislation to clarify that a donor has no rights or obligations to a child only by virtue of a genetic connection and to allow both moms - carrying and non-carrying - to be registered as the child's parents from birth.  Although Ontario had it right in 2003, we are failing in 2015 - let's get back at the forefront of supporting the LGBT community.

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.