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.  




 

Canada is finally lifting the almost 30-year lifetime ban on blood donation by gay men.  However, only men who have not had sex with another man within the past five years will be allowed to donate blood.  Canadian Blood Services hopes to have this new policy in place by mid-summer.  Although this is a marked improvement over the current ban which prohibits men who have had sex with another man even once since 1977 to ever donate blood, the change does not go far enough.  I hope that this is only a first step and that the ban will be further reduced to better balance the protection of those receiving the donated blood with respect for and inclusiveness of all people.  Canada can look to other jurisdictions that balance these
competing interests in a less extreme manner, and through the use of empirical evidence.  For example, Australia has a policy where blood donations are deferred for only twelve months.  A study shows that Australia did not see an increase in contaminated blood donations when it moved to this model.  However, as highlighted below, ideally the health of the donor should be determined based on a donor's behaviour and not on his sexual orientation.

This change may also reverberate to affect those who can be a sperm donor in Canada. Currently, the Semen Regulations under Canada's Food and Drug Act only allow specific men to donate sperm.  Restricted men include any man who has had sex with another man since 1977 (following from the ban on blood donation by gay males).  If a man who has had sex with another man even once since 1977 wants to donate sperm, special permission needs to be obtained unless the sperm is being used by the donor's sexual partner. The regulation points to an increased likelihood of such a donor being infected with HIV.

This policy is unnecessarily discriminatory.  It affects who can be a parent or a donor, and puts gay men at a disadvantage, regardless of the man's HIV status, whether he is in a monogamous relationship, and whether he even lives as a gay male or only engaged in sex with a man once back in 1980.  If the government's concern is the health of recipients of donor sperm, it should be looking for indications of the donor's health and behaviour, as opposed to his sexual orientation or gender.  For example, the current Semen Regulations (which I expect will fall by the wayside as soon as the federal government proclaims the new section 10 of the Assisted Human Reproduction Act and the regulations thereto to be in force), require that any donor sperm provided for the use of someone who is not the sexual partner of the donor be quarantined for six months in order to protect against HIV and other transmittable diseases.  If all donor sperm needs to be quarantined and tested anyways, why is that insufficient for gay males but sufficient for heterosexual males? Regardless, I'm hopeful that the change made to the restrictions on gay males donating blood will signify at least a similar change to the restrictions on gay males donating sperm (and that both policies will continue moving in the appropriate direction). 

NB: I admit that I do not have scientific training so if I am missing something here, feel free to school me.   As the policy stands, it seems to me like discrimination without the science or logic to back it up.

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?