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Two important articles from the Canadian Press in the aftermath of the Assisted Human Reproduction Act Supreme Court decision

At the end of December, the Canadian High Court ruled sections of the nation’s fertility law, the Assisted Human Reproduction Act, unconstitutional and tossed regulation back to the provinces, a move that practically guarantees a patchwork quilt of regulation and ongoing travel for purposes of reproduction. A climate some, such as the the Ottawa Citizen describe thusly:

Advances in artificial procreation have outpaced Canada’s fertility laws. The result? A field of medicine that has been compared to the “Wild West,” where there are virtually no rules governing what’s legally or morally acceptable.

There have been a number of articles in the aftermath of the decision and I strongly urge readers to continue to research these developments beyond what little I’m going to focus on in this post.

For the purposes of this post, though, I’m going to draw on two articles, both published over the weekend.


First up is Fertile ground: The business of baby-making from the Ottawa Citizen.

Both of these pieces are crucial reads, I’m merely going to pull a few sections. Starting with this overview of the existing reproductive climate. (Emphasis added.)

As more Canadians are turning to science to help start a family, the country’s fertility laws have fallen behind the times, with few rules governing what’s legal or morally acceptable when it comes to artificially making babies — and what’s not.

Some fertility doctors are still routinely implanting three or more embryos into women, increasing the risk of twins, triplets or quadruplets, as well as the risk of fatal outcomes or lifelong complications among the babies that survive.

The RCMP is investigating at least two cases of alleged buying and selling of human reproductive material — sperm or eggs cells, or surrogate wombs. And women in India are bearing babies for infertile Canadian couples who are travelling abroad to circumvent the criminal ban against the hiring of surrogates in this ­country.

An Ottawa doctor and Order of Canada recipient, Dr. Norman Barwin, is also facing two civil lawsuits alleging he inseminated two women with the wrong sperm, allegations he denies; the families are seeking a court order requiring the doctor be tested “to conclusively rule out the possibility that he is the donor whose sperm was used.”

Fertility doctors are offering women the chance to bank their frozen eggs for “reproductive safekeeping,” even though many members of their own profession say egg freezing for fertility preservation is experimental and unproven.

The list of controversies continues to grow.

A sperm-injecting technique that allows once-infertile men to father a child is increasingly being used despite concerns over its safety. The adult children who were born decades ago to anonymous sperm donors are going to court to find out who their fathers are. And alarms are being raised about the growing and aggres­sive use of drugs that stimulate a woman’s ovaries to churn out more eggs than she could ever produce on her own.

The article also goes into the lack of national standards or regulation over much of the growing field. (Again emphasis added.)

As pressure mounts on the provinces to follow Quebec’s lead to fund assisted reproduction technologies, as demand for IVF grows and as couples wait longer before trying to have a family, assisted reproduction is poised to move from a niche to a mass market in Canada.

But, three days before Christmas, the country’s highest court ruled key sections of the nation’s fertility law unconstitutional — throwing efforts to regulate Canada’s fertility industry back nearly two decades. The Supreme Court of Canada ruling places much of the industry under provincial jurisdiction and control, effectively killing a scheme to regulate assisted reproduction on a national level. Critics say the absence of federal standards for clinics will lead to a patchwork approach across Canada.

Seventeen years ago, the Royal Commission on New Reproductive Technologies pressed for legislation to govern the business of artificial conception. Seventeen years later, there are still virtually no national standards or policies to oversee a field of medicine that critics say, despite its altruistic veneer, is ultimately about the commercialization of the creation of life.

Assisted procreation “is aimed at a take-home baby. That’s what everyone is in this for,” says Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law. “But ultimately, this is a new human being. And what we have not done in any of this is put that new human being at the centre of our decision-making.”

I have written here a number of times about IVF and the growing movement of donor conceived (dc) individuals and their efforts to gain their fundamental human right of biologically based identity, such as Canadian Olivia Pratten’s lawsuit. (see Olivia Pratten’s suit to end second class citizenship for Canadian donor conceived individuals.)

(As always, I strongly urge those interested in the first hand perspectives of donor conceived people and their human rights work to begin with the Confessions of a Cryokid blog and links as an important jumping off point.)

The driving engine, of course, remains, whatever money can buy.

Despite the money changing hands, many in the field deny that they’re engaged in commercial transactions.

“In the reproductive business — which is a business — you have this very strange denial of the commercial aspect of what people are doing,” says Debora Spar, author of The Baby Business: How Money, Science and Politics Drive the Commerce of Conception.

“I get it, I understand it. I think because reproductive technologies are so new people still have this knee-jerk reaction against them — they get very scared when the words ‘baby’ or ‘reproduction’ occur in the same sentence as money,” says Spar, a former professor of business administration at Harvard Business School and current president of Barnard College in New York City.

“The truth of the matter is that there is commerce going on — and it’s pretty expensive and high-priced commerce going on.”

In the U.S., “you can buy sperm, you can buy eggs — that’s really the market that has exploded — you can rent wombs and you can increasingly put together these complicated package deals, where you buy the sperm from one source, the egg from another and the surrogate mother.”

Canada’s Supreme Court left in place prohibitions against paying for sperm or egg donors or surrogacy services — outlawed activities that carry fines of up to $500,000 or 10 years in prison. But many Canadians are simply buying and importing donor sperm and eggs from the U.S. — often with the help of Canadian fertility clinics — or traveling abroad for surrogates.

As the article points out, whatever Canadians can’t get domestically, they can buy in the United States or abroad.

Protecting the identity rights of those produced by these processes likewise, remains just another regulatory hole. (Emphasis added.)

Spar and others say more needs to be done to track any long-term health risks to babies born after assisted conception, and to the women who receive large amounts of hormones as part of their treatments. They say permanent donor records need to be kept to allow children born from sperm or egg donation to trace their genetic parents, should they wish to do so.

“We do that now for adoption after making mistakes for decades. We’re making the same mistakes with assisted reproduction in presuming that children have no interest in their genetic heritage,” Spar says.

The quote, despite bringing up the interests of donor conceived individuals still shows how little their circumstances are understood.

Beyond mere curiosity or interest in one’s genetic heritage, the ability to trace authentic identity and one’s own origins, as well as ethnicity, nationality, family, etc. is firmly in the realms of human rights. When donor conceived individuals are intentionally deprived of such, they are denied their most basic human rights.

Laskin says the “outliers” are small and the vast majority of doctors working in the country’s private fertility facilities are practising at a high standard.

But those watching say the need for oversight and regulation has never been greater.

“Otherwise you are saying to any person with a private interest in making humans, go out there and set up a business,” says Françoise Baylis, Canada research chair in bioethics and philosophy at Halifax’s Dalhousie University.

Which is globally, precisely what has already happened.

Which leads us to the second article, this one about a key technological leap in terms of human egg freezing and defrosting, as well as the pressures driving women to freeze eggs, ideally in their 20’s.

See Human-egg banking raises sticky social questions from the Vancouver Sun.

The article points out how these technologies were originally developed in the medical realm, to help women facing threats to their reproductive capacity retain the ability to bear children at a later date, yet they are now shifting towards the consumer marketplace in a broader climate of little to no regulation.

Egg freezing was born from a goal of rescuing the fertility of women undergoing treatment for cancer or other diseases that can destroy immature eggs in the ovaries and plunge women into premature menopause.

As there is little to no long term health monitoring both of the effects of the practices on the resultant offspring and on the women themselves, much of this reproductive marketplace and its long term effects exists firmly in the realm of “we don’t know.”

Tan agrees with critics that centres introducing egg freezing should initially only do it in the context of a clinical trial, and under research ethics supervision, until they can obtain “consistently good results,” and preferably publish those results in a peer-reviewed journal.

But critics also charge that the long-term effects on the eggs and resulting embryos are unknown. “The consensus of opinion is that if an egg fertilizes and it develops to an early embryo and we implant it into a uterus and it grows, everything is pretty much OK,” says Dr. Roger Pierson, a past president of the Canadian Fertility and Andrology Society and professor of obstetrics and gynecology at the University of Saskatchewan. “But we don’t know how that is going to affect their long-term development. There are things that we just can’t test in animal models.” There’s also no guarantee of a baby in the end, he says.

Women need to be told what the realistic outcomes would be, Pierson says. “The reality is, we just don’t know what that is.”

“I would hate to see it used as a marketing tool, saying, ‘100 per cent of the time when we freeze your eggs you’re going to get a baby at the end of the day.’ ”

All of this, once again, raises the ongoing questions pertaining to stored genetic material and those vying for ‘ownership’/ability to utilize such years later.

While frozen unfertilized eggs are obviously different from frozen fertilized eggs, a careful study of how those pushing embryo transference (what is sold as “embryo adoption” here in the States,)  particularly those in the christian evangelical subcultures, and how they have come to view genetic material in long term storage as more a national resource than under individual ownership may over time become increasingly pertinent.

Here in the States, in Louisiana for example, they have worked to ensure that frozen embryos can legally only be thawed for purposes of implantation and potential pregnancy. They have a definite preferred outcome for the embryos and it precludes other means of disposal or donation for medical research purposes. See my previous posts In-Vitro Fertilization, “Snowflakes,” and the growing Christian Eugenic movement and Stem-Cell Veto, Snowflake kids, and Christian Eugenics.

Whether or not they would extend their religiously based objections and demand the stored material be essentially hijacked/commandeered from those who were originally the sources of the genetic material beyond fertilized eggs on into any stored material that could be utilized to produce pregnancies is an unanswered question.

The article also points out the fundamental lack of basic physiological and biological education.

Clearly, far beyond sex ed, people need a crash course in the reproductive realities of their own bodies. This lack of basic understanding of the reproductive limitations women face over the course of their reproductive lifetimes is common across many cultures and nations.

Women are born with a finite number of eggs. At birth a woman’s ovaries contain approximately one to two million oocytes — immature eggs; by puberty, the count drops to 400,000. During each menstrual cycle, about 1,000 oocytes begin to develop but only one becomes a mature egg. The others left behind die. Not only does the supply shrink but egg quality decreases over time as well, since the best eggs are used up when young, so that each egg now offers less chance of pregnancy and a higher risk of miscarriage.

By the time a woman reaches age 39, “there aren’t many (follicles) left that have got enough strength to raise their hand,” says Dr. Al Yuzpe, co-founder and co-director of the Genesis Fertility Centre of Vancouver.

“My usual response is, ‘You may not look 40, you may not feel 40 but your ovaries don’t know it,’ ” Yuzpe says. He frequently encounters women who had no idea of the limits of their fertility. “They’re not only shocked, they’re tearful, they’re angry. ‘Nobody told me that I wasn’t going to be able to get pregnant at 48.’

But when women don’t understand something as basic as pregnancy at 48 isn’t “normalcy” is it then any wonder that somewhere between adoption and reproductive technologies the unending quest for a child plays out against the backdrop of a consumer marketplace catering to precisely those consumer demands?

As for the kids produced or purchased, they’re lucky at this point, to even get a couple sentences worth of mentions even in thoughtful articles such as these.

That’s part of the problem.

Now as earlier generations of donor conceived individuals (and adoptees) reach adulthood and find their voices politically, those in any position to regulate this “wild west” would do well to listen.

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