In 2004, the Canadian government passed The Assisted Human Reproduction Act (AHRA). The legislation also established Assisted Human Reproduction Canada (AHRC), a Federal agency, which was to be responsible for licensing, inspecting, and enforcing activities controlled under the Act. The legislation itself addresses several areas of human genetic and reproductive technologies. The Act prohibits many practices, including the sale of sperm, eggs, and embryos.
The use of donor eggs or sperm is permitted. It’s only the “sale” that is not allowed.
When this legislation first passed, I was living and practicing in the US. Clinics there were, and still are, able to pay sperm and egg donors for their time and effort. Many clinics, including the one at which I worked, actively recruited young women (usually around the age of 26-32) to act as egg donors for couples in which the eggs of the female partner were either not present or not deemed be likely to lead to a healthy pregnancy. I did have Canadian patients seeking egg donors in the US.
Most donor sperm in Canada comes from sperm banks in the US or other countries. The sperm is paid for in the jurisdiction where it is legal to purchase donor gametes, and is then imported into Canada. In an online article on the CBC website, I found the following statement:
This means if the transaction takes place in Canada, that charges could be filed. It remains untested in the courts if purchases over the internet with US-based agencies avoid triggering Canadian law.
With the advent of newer technologies, it has become possible to freeze and transport eggs just like sperm. Some fertility clinics in Canada have followed the donor sperm model and started the importation of frozen donor eggs. Others will ship patient sperm to the US to be fertilized with donor eggs, and then the embryos that are created are frozen and imported back into Canada.
But it’s hard to argue a difference between donor eggs and donor sperm.
Women who donate their eggs go through a time-consuming, potentially risky process and some compensation would seem reasonable. I think the legislation was intended to protect these donors from financial coercion. I think the legislation was also meant to protect the rights of children born through the process to know their genetic origin.
Clinics are finding ways around the current law, but many in the field are left feeling very uncomfortable as patient needs and newer technologies have put them at the edge of the law. Anyone who violates the Assisted Human Reproduction Act could face a hefty fine of $500,000 or even jail term of 10 years. This scares many patients and physicians and drive practices underground, but doesn’t always stop them.
Importing donor eggs from the US puts the whole egg donation process, including the safety and rights of donors, outside of Canadian regulation. When donors come to Canada just to retrieve their eggs and then return to the US, and the donor is left in medical and legal limbo; who is looking after their health and any complications that arise from the process?
Instead of preventing a “business” around donor gametes, it has just pushed this “business” to the US.
Clearly, the law is confusing and unclear. Canadian couples do feel a need to use donor gametes and many families have been created or expanded through the use of donor eggs and sperm.
As it stands, neither donors, patients, nor the offspring that are created are being well served.