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.

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.   

Today I had the opportunity to participate in Huffington Post's Change My Mind feature, in which I debated with Francoise Baylis about the American Society of Reproductive Medicine's new policy of increasing the age of IVF to 55 from 52.  I argued that the increase is appropriate, and Ms. Baylis disagreed (as do many others). I think the debate is worth reading so check out the link here.  There have been some interesting discussions on the topic on my Fertility Law Canada facebook page over the past few weeks as well.  For readers, I have posted my argument below.  I look forward to hearing what people think.
 
 A couple of weeks ago, the Ethics Committee of the ASRM (American Society for Reproductive Medicine) published a paper called "Oocyte or Embryo Donation to Women of  Advanced Age." In it, the ASRM changed its long-standing policy so as to allow embryo transfer to women up until 55 years of age (where the women have no underlying medical issues that could increase health risks), an increase from the previous limit of 52 years of age. The reason behind the change? At least partly, this change reflects the fact that we now have data demonstrating that for women between the ages of 50 and 54, embryo transfer and pregnancy does not pose a significant increase in health risks to the mother or child as compared to younger women. However, studies show that women over the age of 55 are far more likely to experience hypertension, gestational diabetes and caesarian sections as compared to women in the 50-54 age range. Further, the limited data available about parenting in women who conceived and delivered after the age of 50 does not support the concern that such parents have reduced parenting capacity or capabilities; rather, children of these parents may benefit from increased financial and emotional stability.

Where there is no significant medical reason, and no empirical evidence demonstrating that older parents are any less fit than younger parents, is it right to deny an older women  access to IVF solely on the basis of age? I think not.

Various jurisdictions across Canada have enacted legislation prohibiting the denial of services, including medical services, to a person on the basis of age (along with race, gender, sexual orientation and marital status, among others).
The denial of fertility services to a woman solely on the basis of her age falls squarely within the realm of age discrimination. Age is one concern, but what about the other bases of discrimination listed in the relevant human rights codes and acts? For example, there are those who argue that it is in the best interests of children to be raised by heterosexual parents.  

Similarly, others may argue that it is detrimental for a child to grow up in a single parent household, in which the parent may be more stressed, have less time and attention for the child, and the child may have less access to financial and other resources. Thankfully, for the most part, we as a society have done away with the stigma associated with same-sex families or single parent homes, and in Canada, fertility services are largely provided to heterosexual, same-sex, married and single people alike. However, if we begin denying fertility services to a 53-year-old woman (thus effectively determining who may and who may not be a parent) without any empirical evidence in support of the policy, it is not much of a stretch to imagine denying fertility services to other groups, including single parents or members of the LGBT community, all in the name of the best interests of the child.

Further, even if we look at this issue solely from the perspective of the best interests of the child and ignore any reproductive right to which the mother may be entitled, it is faulty logic to assume that younger parents = good, while older parents = bad. For example, if we had a situation where the prospective mother seeking to access IVF is 53 years of age while her partner is 65, we have one set of concerns that is effectively minimized where the same
woman's partner is 37 years of age.  Similarly, if we look at a situation where the prospective mother is 53 years old but healthy versus a situation where the mother is only 30 years old but has a terminal illness or an illness which will
greatly affect the quality of her parenting, the best situation for a child may, in fact, be with the older mother. There are many factors that go into determining who makes a good parent, and if age is arguably a factor, it is one of many. For example, if we decide that mothers older than 52 ought not be parents, could we not make similar decisions on the basis of the mental health of a parent, financial resources available to the family, functionality of the family and the like? Drawing hard lines in the sand about something as arbitrary as the appropriate age to be a parent is an overly simplistic view that will undoubtedly result in poor decisions.

The ASRM's change in policy is refreshing in that it is based on empirical evidence. This contrasts sharply with Canada's sorely lacking legislation dealing with the use of assisted reproductive technologies, borne out of fear of the unknown. Instead of non-parties continuing to impose their moral judgment on others about they choose to build their families, perhaps we can recognize that most women between the ages of 53-55 who now access IVF as a result of ASRM's policy change will be making a well-considered decision to bring a wanted and loved child into the world. Let's give these parents some credit. Besides, what right do we have to make this very personal decision for them?

Earlier today, Mark Warawa's Motion 408 to condemn gender based abortion was unanimously declared unvotable.  According to an article in the pro-life website LifeSiteNews.com, Motion 408 was declared to be unvotable as parliament had already taken up the issue.  Moreover, and from my perspective more interestingly, Motion 408 was also found to be unvoteable because abortion is a health matter and therefore properly dealt with under provincial jurisdiction rather than federal jurisdiction.  Putting on my fertility lawyer's cap here, if abortion is clearly a health issue and therefore provincial, isn't it only logical that fertility treatments are also a health issue and therefore ought to be governed on a provincial basis rather than federally by the Assisted Human Reproduction Act and Health Canada? The 2010 Supreme Court of Canada Reference Re AHRA determined that the impugned sections of the AHRA were overreaching as they were properly health matters and therefore outside of the jurisdiction of the federal government.  However, it seems to me that the Reference decision failed to go far enough by failing to challenge the legislation in its entirety.  For example, IVF and the consent thereto - health matter or criminal matter? To my mind, the answer is clear - health matter.  However, section 8 of the Assisted Human Reproduction Act requires a doctor to obtain the written consent from a patient using his or her own gametes for in vitro fertilization treatments, among other things.  So far, makes sense.  Here is the problem - failure to obtain the consent (in line with fifteen pages of regulations) remains a criminal matter under the AHRA, punishable by up to ten years in jail.  

The answer seems obvious to me - fertility is a health matter, and not criminal.  Let's start over and perhaps the provincial government will have more success than has the federal government in providing logical, evidence-based legislation and regulation that allows doctors to provide medical care and patients to receive it without the threat of incarceration.
 

Over the past few days, there has been a veritable flood of articles in Canadian media about the practice of California IVF: Davis Fertility Center Inc. creating embryos to sell to clients to be used in IVF. See, for example, Wendy Leung's "Should IVF Patients be Allowed to Buy Embryos?", Sharon Kirkey's "For Sale: “Donor Embryos” Newest Addition to World of Artificial Procreation" and "Marni Soupcoff on the Sale of Fertilized Embryos: How much for that Blastocyst
in the Window?".  As a lawyer practicing in fertility law with my ear to the ground and an active embryo donation practice, California IVF's practice wasn't news to me.  In fact, over the past three weeks I have made as many presentations about embryo donation, all of which began with a statement about what embryo donation in Canada is not (being the practice in which California IVF is engaging).

In Canada, it is illegal to purchase (but not to sell) donor eggs or sperm (punishable by up to ten years in jail and/or a $500,000 fine), but it is legal to import donor eggs or sperm which were paid for abroad (see my earlier post here on this topic, or my Huffington Post article here).  It is also illegal to purchase or sell embryos in Canada (also punishable by up to ten years in jail and/or a $500,000 fine).  Although Bill C-38 (formerly known as the Omnibus Bill) introduced new legislation this past June that, when it takes effect, will regulate the importation of donor eggs into Canada (a practice which is currently unregulated), Bill C-38 and the Assisted Human Reproduction Act are curiously silent when it comes to regulating the importation of donor embryos into Canada.  Altruistic embryo donation, though, is legal and in my opinion, an excellent option worth consideration when a person has embryos left over from their own IVF cycle(s) (the other options being discarding the embryos, donating them to medical research or indefinite cryopreservation).

As a whole, the articles focus their collective outrage about California IV's practices on the aspect of purchasing donor embryos.  While this practice is strictly prohibited in Canada and certainly raises ethical concerns for some who argue that it is commodification of human life, I would argue that for many of us who practice in the fertility sphere, it's not the exchange of money that is so unconscionable.   In fact, I would make an educated guess that while practitioners in Canada respect the law, most are strongly opposed to the AHRA's prohibition on the sale of gametes and believe that it is bad policy (the same is not necessarilty true about the purchase and sale of embryos).  Based on my conversations with fertility lawyers and clinicians, the ethical concern and associated uproar isn't about the sale of embryos per se, but about clinicians creating embryos at their discretion without any particular parents in mind, using the characteristics that the clinicians determine are most likely in demand, which the clinicians then try to sell to potential intended parents.  Clinicians creating embryos out of donor eggs and donor sperm for an infertile individual or couple's use at the request of the parent(s)  - it happens all the time.  Clinicians creating embryos  with the hope that at some point a parent will show up and purchase the stockpiled embryos - this is what is so upsetting to so many. 

Legally, other than the commodification issue, there is nothing at odds with Canadian law about California IVF's practice, assuming both the sperm donors and the egg donors have provided proper consent.  Why is it, than, that this is so disturbing to so many of us, myself included? Dr. Laskin of LifeQuest IVF was quoted as saying that, that while many of his colleagues are uneasy with what’s happening in California, "[t]wo to five years from now, people may not even bat an eye at this."  This may be true, but for now, I agree with Francoise Bayliss that it is preferable (though not necessarily practical) to use one of the thousands of embryos cryopreserved in the clinics across Canada.  

For me, PRIDE is a time of hope and celebration, and I think it is apropos that we recognize just how far we have come as a society in helping all people who want children build their families in various ways, including through assisted reproductive technologies (ARTs).

I often mention that, in my opinion, the Assisted Human Reproduction Act starts out with a bang that is truly something to be proud of (unfortunately it  
fizzles out from there).  Specifically, the Act states that,

s. 2      The Parliament
of Canada recognizes and declares that…

 (e) persons who seek to undergo assisted
reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status.

While ARTs are often lauded for their success in helping people with infertility, they are  just as useful, necessary and laudable for members of the LGBT community who do
not suffer from infertility.  Gay men in particular benefit from accessible ARTs with an emphasis on the T for
technology; donor insemination has long been a self-help remedy, but there is no corresponding self-help remedy for gestational surrogacy.  
   
Although there is much to celebrate (and there
really is – so many beautiful families would not have been possible without ARTS), it’s imperative that we learn how to make section 2(e) of the AHRA more than just an ideal but a reality.  To that end, I want to share with you the hands-down best presentation regarding ARTs that I have been to all year, which hopefully will obain the funding to be presented repeatedly throughout Ontario:

Reframing Assisted Human Reproduction: 

A forum theatre workshop about LGBTQ people’s
experiences with AHR services

The workshop is based on interviews conducted with 66 LGBTQ people across Ontario who have used, considered using, and/or avoided using AHR to have genetically related children.  Some of the worst experiences of
the interviewees are portrayed for the audience (the performance is candid that it is reflective of the worst-case scenarios and doesn’t reflect any of the positive experiences of the LGBTQ community accessing ART services in
Ontario).  I have to admit, I had my doubts about a performanced based workshop, but it was incredibly effective.  As far as we have come with people of the LGBTQ community having access to ARTs, the experiences as performed in the workshop were shocking, eye-opening and traumatic.  From the things that we can easily remedy to be more sensitive, such as offering genderless bathrooms, to the way consent forms are drafted making
assumptions as to gender and sexuality, this presentation highlighted practical ways in which we can make ART services truly accessible to the LGBTQ community.  

For more information, please contact Lesley Tarasoff

 Phone:
416-535-8501 x 7386

Email:
[email protected] 

or see http://www.lgbtqhealth.ca/

A quick note about my earlier post regarding the legality of paying for imported banked frozen ova into Canada (read it here):
1. I'm proud to announce that a version of the post was published in the Huffington Post here, and
2. I heard through the grapevine that Health Canada confirmed that purchasing banked eggs and importing them into Canada is, in fact legal.  I am hoping to obain confirmation of that in writing shortly!

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