IDOA Report 2008: Canada
[This report was written by Barry Stevens with Diane Allen’s invaluable editing and corrections. ]
Perhaps the most significant event in this country in the last year was Olivia Pratten’s proposed class action lawsuit launched on Oct. 24th in the province of British Columbia (BC). (Seehttp://www.arvayfinlay.com/news/news-oct28-2008.html). The lawsuit seeks the immediate, and ultimately, the permanent, protection and preservation of all files related to the practice of gamete ‘donation’ in BC. On Oct. 28th, the Chief Justice of the BC Supreme Court issued an injunction ordering all ‘donor’ records not be destroyed, transferred or redacted. The suit names the College of Physicians and Surgeons of BC (which allows 'donor' info to be destroyed after six years) as well as the attorney general of BC. Olivia argues that present law and practice are discriminatory to those born of 'donor' conception since provincial law gives adoptees the right to learn about their biological parents, and the fact that this is not true for the ‘donor’ conceived violates the equality and security of the person provisions of the Canadian Charter of Rights and Freedoms. (Most provinces do not give information rights to adoptees, and we cannot say whether this suit, even if successful, will affect other provinces and territories in this country. But it would likely have a big influence.) The Adoption Council of Canada supports the suit. IDOA – Canada does as well, of course, as does the Infertility Network. The province and the college have until Dec. 28th to respond to the claim (we don’t know if they did at this writing.) The suit will continue in 2009 if the court agrees.
Other news: The Assisted Human Reproduction (AHR) Act is now approaching five years of being law. When it was undergoing parliamentary committee hearings before being passed, advocates such as Pratten and her mother, as well as Barry Stevens, Irene Ryll, Diane Allen and others came close to persuading Parliament that, in future, only those willing to be identifiable to their progeny should be permitted to donate gametes. However, MPs hostile to our position (including two physicians) were parachuted onto the Commons committee and we lost.
The Act does prohibit payment to donors (beyond reimbursement for expenses directly related to the act of donation), and provides for the preservation of records and access to health information (albeit only a snapshot gathered at the time of donation, with no requirement to update it if significant health issues arise later in the family of the donor or those of offspring). We still hope to see a voluntary registry set up.
So far, however, the Assisted Human Reproduction Implementation Office of Health Canada has only developed one regulation (regarding consent). In this regulatory void, a growing black market in human eggs has developed, aided and abetted by some private, for-profit clinics which either turn a blind eye or still recruit paid ‘donors’. This has been reported in the media, and also brought to the attention of Assisted Human Reproduction Canada (AHRC) – the federal agency under Health Canada responsible for enforcing the Act. However, AHRC seems either unable or unwilling to enforce the prohibitions.
Moreover, the Act is threatened by influential organizations, which represent fertility doctors and some patients and are financed by the pharmaceutical manufacturers of fertility drugs and private, for-profit clinics which are pressing the government to retain donor anonymity as well as remove the ban on payment when the Act comes up for its mandatory five year review in 2009. The Act is also threatened by the Province of Quebec which argues that the Act is unconstitutional since in Canada, health is for the most part a matter for provincial jurisdiction. The Federal and Quebec governments will be fighting this out in the Supreme Court in 2009. IDOA – Canada is considering whether to make an ‘intervention’ in this case.
To end on a positive note: IDOA – Canada is on its way to being a registered non-profit in Ontario.