When the federal legislation that was to apply to assisted reproduction was first introduced in 2004, it failed to follow the recommendations of the 2001 Canadian House of Commons Standing Committee on Health. That Committee did some excellent work which has to date largely fallen on deaf ears. It made many recommendations, including that there be a maximum number of children born from a single donor, that donors consent to being identified, and that there be eligibility requirements for donors and recipients. Most importantly, the interests of the children born from assisted human reproduction were to be protected and given paramount consideration.
As discussed last week, our governments’ failure to protect the best interests of the people created through third party reproduction is also out of step with the United Nations Convention on the Rights of the Child — the most widely accepted of all UN conventions.
What minimum provisions could we enact to protect the best interests of the people created, and better align with our international commitments?
“Donor anonymity” ought to be prohibited. People must be permitted to know the identity of those who contribute to their conception. They must be allowed the opportunity to have a relationship with them, should the person so created desire it.
Counseling must be compulsory for all involved, including the intended parents and the person providing their reproductive material, BEFORE they decide to proceed. Fertility clinics , fertility banks and those who provide their reproductive material should be required to sign a document confirming that such counseling has taken place.
Those who provide their reproductive material ought to be made aware that the person being created may desire a relationship with them, and they ought to be required to commit to this, should that person so desire it. Intended parents ought to be educated on this also. They must realize that the people created have the same innate need that we all do (but which many of us take for granted) to know our genetic history. This has long term implications for spouses, other children who will be half siblings, and other relatives.
Records must be retained beyond the life of the person created, with consequences for earlier destruction.
There must be firm limits on the number of people which may be born from any particular person’s reproductive material, for example, no more than three children per donor. Currently, there is no limit on how many children can be conceived through a single donor.
Birth certificates that show non-genetic parents should expressly reference the lack of genetic heritage.
Medical personnel and their support staff must be required to attend training to increase their awareness of the impact on the person created, their families, the donor and his/her family, and others.
Fertility clinics, banks and medical offices that are involved in third party reproduction must have clear and fair complaint processes in place to assure that complaints from patients are considered according to a fair process that involves due process and compliance with the rules of natural justice. Appeals/recourse from those decisions must be available to an independent regulator. Complaints must be assessed seriously. Families must have recourse if there are any attempts to bully or intimidate them.
There must be requirements on how fertility clinics calculate and disclose “success” rates, along with an overall requirement that such rates be accurately disclosed. These requirements must require success rates to be based only on single pregnancy live healthy births (not mere pregnancies which later miscarry). Multiple births should be disclosed separately from single births.
There must be an ability for employees of fertility clinics, banks, physicians and regulators to report failures to comply with the law, and protections for these ‘whistle blowers’.
Requirements that embody many of the above do exist elsewhere in the world.
In Canada, however, that is not yet so. Before proclaiming regulations that allow increased commercialization in this area, our legislators have some work to do, to first implement an adequate regulatory regime which protects the rights of the people the whole process is seeking to create.
You might also be interested in:
This is a modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about August 23, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or through our website at inspirelaw.ca.