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Legislation on assisted reproduction—or the lack of it—has wreaked havoc for prospective parents in the LGBTQ (lesbian, gay, bisexual, trans and queer) community in Canada.
The federal government enacted the Assisted Human Reproduction Act in 2004 in an attempt to regulate reproductive technologies. The Act prohibits paying donors for their eggs and sperm. This has led to an acute shortage of reproductive material in Canada.
If you’re not going to pay donors, they’re not going to donate, says Kelly Jordan, a family law specialist at Jordan Battista LLP in Toronto. “So the market went to the States, or if there are payment arrangements being made here, they’re under the table, because they’re illegal, and the penalties are huge—ten years in jail and a half million dollar fine.”
This affects the LGBTQ community in a very detrimental way, Jordan says. Members of the LGBTQ community need third party reproductive material to have families unless they adopt. But since reproductive material is no longer available in Canada legally, that means that only the wealthier people in the LGBTQ community can afford to have children. Prospective parents have to ship sperm or fly egg donors in from the U.S., and pay egg donors through agencies in the U.S., which is much more expensive than it was before, Jordan says.
Rachel Epstein, coordinator of the LGBTQ Parenting Network at the Sherbourne Health Centre in Toronto, agrees. “I’ve known people who, in the process of trying to get pregnant through donor insemination, have lost their houses because of the expense,” she says.
The government implemented the prohibition on payment for eggs and sperm in an attempt to prevent commercialization of the fertility industry, says Dr. Marjorie Dixon, a fertility specialist at First Steps Fertility Centre in Toronto. While she believes the government had good intentions in enacting the legislation, and wasn’t trying to prevent the LGBTQ community from having families, the good intentions backfired.
“The [government] didn’t want it to turn into ‘the highest bidder can get the supersperm, and the people who have no money can’t get anything at all,” Dixon says, noting that the irony is that the legislation has ended up hurting the very the citizens it was trying to protect.
The Act has created a difficult situation for physicians as well, Dixon says. “Nobody wants to be the example, [the person who] gets charged with $500,000 or 10 years in prison. It’s a significant deterrent to criminals…But it’s also a deterrent to those reasonably practising physicians who want to help their patients, and have the knowledge, training and facilities, but can no longer do so because of the stipulations within the Act.”
The Act currently faces a jurisdictional challenge. Although enacted by the federal government, health falls under provincial jurisdiction. The legislation was challenged in Quebec, and the Quebec Court of Appeal ruled in 2008 that many parts of the Act encroach on provincial jurisdiction and are therefore unconstitutional. Although the Supreme Court of Canada heard the case a year ago, it has not yet released its decision, leaving the future of the Act in question.
The law on the rights of sperm and egg donors is also murky. For example, there’s no difference between a donor and a parent in Ontario law, Jordan says.
“There’s nothing that says that a man who donates sperm is not a parent, or is a parent. So in law, he could acquire parental rights and also parental obligations. He might have a right to see the child, and he might have an obligation to pay child support. That’s an unknown area. We don’t have any certainty about that,” Jordan says.
“So if you’re a lesbian couple planning to have a child and your intention is that you will be the only parents, using a known donor is very risky…unless the [couple] wants to give that donor some parental rights. He might have some obligations, so it’s risky for him as well.”
Prospective parents may choose a known donor because they want the father to be known to the child, says Jordan, and there are all sorts of good reasons for doing that. “But we just don’t have the legal structure to protect that kind of relationship…You might have a judge second-guess what you planned your family to be.”
The lack of legislation or case law on donors affects other areas of law as well.
“[Donors] may not be treated any differently than any other genetic parent, but we don’t know, because there’s never been a definitive Canadian case that dealt with a pure donor and intended parent,” Jordan says. “For instance, if you die without a will, your kids inherit your estate. So if a donor dies without a will, does the child inherit his estate…? I don’t know.”
Dixon says that where infertility is concerned, “people don’t complain or cause a ruckus because they’re just so grateful when they can have a family.” That attitude needs to change if the LGBTQ community wants to see the government clarify the law on assisted reproduction.
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