How the Assisted Human Reproduction Act Hurts Canadians and in Particular Donor-Conceived Children in Canada

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.