There is also a substantial and growing demand for eggs for research on reproduction, reproductive and genetic technologies, and regenerative medicine (e.g., embryonic stem cell research). However, the scope of this paper is limited to the use of eggs for reproductive purposes.
2.
MaxwellK. N.ChostI. N., and RosenwaksZ., “The Incidence of Both Serious and Minor Complications in Young Women Undergoing Oocyte Donation,”Fertility and Sterility90, no. 6 (2008): 2165–2171; GirolamiA.ScandellariR.TezzaF.PaternosterD., and GirolamiB., “Arterial Thrombosis in Young Women After Ovarian Stimulation: Case Report and Review of the Literature,”Journal of Thrombosis and Thrombolysis24, no. 2 (2007): 169–174; PearsonH., “Health Effects of Egg Donation May Take Decades to Emerge,”Nature442, no. 7103 (2006): 607–608. BeesonD. and LippmanA., “Egg Harvesting for Stem Cell Research: Medical Risks and Ethical Problems,”Reproductive Biomedicine Online13, no. 4 (2006): 573–579.
3.
Ethics Committee of the American Society for Reproductive Medicine. “Financial Incentives in Recruitment of Oocyte Donors,”Fertility and Sterility82, Supp. 1 (2004): S240–S244.
4.
Pre-existing conditions and identified risks of developing certain conditions can affect whether an insurer will provide insurance and, if so, at what premium. It is possible that a risk or condition could be detected on screening that would result in an individual being unable to purchase (at an affordable rate or at all) life insurance, travel insurance or supplemental health insurance. If the risk manifests or the condition requires expensive medical treatment, the individual without insurance could then face financially ruinous bills. Possible incidental findings (without ancillary benefit to the individual) from screening in conjunction with egg production and retrieval include abnormal lab values of no clinical significance (e.g., elevated prolactin) and the identification of ovarian cysts. For an explanation of the risks to insurability posed by incidental findings, see ApoldV. and DownieJ., “Bad News about Bad News: The Disclosure of Risks to Insurability in Research Consent Processes,”Accountability in Research18, no. 1 (2011): 31–44.
5.
Calderon-MargalitR.FriedlanderY.YanetzR.KleinhausK.PerrinM.C.ManorO.HarlapS., and PaltielO., “Cancer Risk after Exposure to Treatments for Ovulation Induction,”American Journal of Epidemiology169, no. 3, (2008): 365–375; SchneiderJ., “Fatal Colon Cancer in a Young Egg Donor: A Physician Mother's Call for Follow-Up and Research on the Long-Term Risk of Ovarian Stimulation,”Fertility and Sterility90, no. 5 (2008): 2016.e1–2016.e5; MahdaviA.PejovicT., and NezhatF., “Induction of Ovulation and Ovarian Cancer: A Critical Review of the Literature,”Fertility and Sterility85, no. 4 (2006): 819–826; SalhabM.Al SarakbiW., and MokbelK., “In Vitro Fertilization and Breast Cancer Risk: A Review,”International Journal of Fertility and Women's Medicine50, no. 6 (2005): 259–266; BrintonL. A.MoghissiK. S.ScocciaB.WesthoffC. L., and LambE. J., “Ovulation Induction and Cancer Risk,”Fertility and Sterility83, no. 2 (2005): 261–274; BrintonL. A.LambE. J.MoghissiK. S.ScocciaB.AlthuisM. D.MabieJ. E., and WesthoffC. L., “Ovarian Cancer Risk after the Use of Ovulation Stimulating Drugs,”Obstetrics and Gynecology103, no. 6 (2004): 1194–1203; AhujaK. K. and SimonsE. G., “Cancer of the Colon in an Egg Donor: Policy Repercussions for Donor Recruitment,”Human Reproduction13, no. 1 (1998): 227–231. For a discussion of maternal deaths, see SembaS.MoriyaT.YoussefE. M., and SasanoH., “An Autopsy Case of Ovarian Hyperstimulation Syndrome with Massive Pulmonary Edema and Pleural Effusion,”Pathology International50, no. 7 (2000): 549–552; LewisG., ed., “Saving Mothers' Lives: Reviewing Maternal Deaths to Make Motherhood Safer – 2003–2005,”The Seventh Report on Confidential Enquiries into Maternal Deaths in the United Kingdom. The Confidential Enquiry into Maternal and Child Health (London: CEMACH, 2007): At 25.
6.
CousineauT. M. and DomarA. D., “Psychological Impact of Infertility,”Best Practice and & Research: Clinical Obstetrics and Gynaecology21, no. 2 (2007): 293–308.
7.
AlmelingR., Sex Cells: The Medical Market in Eggs and Sperm (Berkeley: The University of California Press, 2011): at 110.
8.
Assisted Human Reproduction Act S.C.2004, c. 2, s. 7 [hereinafter cited as AHR Act].
9.
For example, the United States does not prohibit the sale of eggs.
10.
For a discussion of how bans on the commercialization of human tissue are not as strict as they may first appear, see LenkC. and BeierK., “Is the Commercialisation of Human Tissue and Body Material Forbidden in the Countries of the European Union?”Journal of Medical Ethics38, no. 6 (2012): 342–346; For example, in Spain, “donors receive some financial compensation. Law 14/2006 of 26 May 2006 makes gamete and embryo donation a free contract, formal and confidential between the donor and the clinic: ‘The donation will always be non-profit and not commercial. The financial compensation can be set to only compensate strictly physical discomfort, travel and loss of earnings that may arise from the donation and must not involve economic incentives.’ The amount of this compensation may vary from clinic to clinic. But the guidance given by the National Commission on Assisted Human Reproduction is that the overall figure for compensation should be about 900 Euros (775 pounds). While in a few other European countries (e.g., Cyprus and the Czech Republic) similar levels of compensation are paid, this is a much higher figure than in most countries.” Garcia-RuizY. and Guerra-DiazD., “Gamete and Embryo Donation: A Legal View from Spain,” in RichardM.PenningsG., and ApplebyJ., eds., Reproductive Donation: Practice, Policy, and Bioethics (Cambridge: Cambridge University Press, 2012): 112–129, at 115.
11.
Various authors have attempted to catalogue the legal regulation of various aspects of assisted human reproduction throughout the world. See, for example, International Federation of Fertility Societies, (General Editors: JonesH.CookeI.KempersR.BrinsdenP., and SaundersD.), “International Federation of Fertility Societies Surveillance 2010” Special Contribution, Fertility and Sterility95, no. 2 (2011): 491.
12.
There is evidence that Canadian women and couples travel to other countries to provide and to receive eggs; some also import frozen eggs into Canada. As well, Canadian health professionals retrieve and use the eggs of women visiting Canada for the express purpose of providing eggs. Alongside fertility consultants (and brokers), health professionals also facilitate the transfer of eggs across borders. This evidence is summarized later in the paper.
AlmelingR., Sex Cells: The Medical Market in Eggs and Sperm (Berkeley: The University of California Press, 2011): at 10.
15.
Although there is not space to go into any detail in this paper, we note that all provinces and territories have legislation regarding human tissue donation and transplantation. Five provinces explicitly exclude eggs from the operation of this legislation (Ontario, Nova Scotia, PEI, Manitoba, and Alberta). Five other jurisdictions do not explicitly exclude eggs from their legislation and these four provinces and territory prohibit the buying, selling, or otherwise dealing in, directly or indirectly, for a valuable consideration of any tissue, where eggs would fit within their definition of “tissue” (British Columbia, Saskatchewan, Yukon, Newfoundland, and New Brunswick). The Northwest Territories and Nunavut legislation only deal with post mortem donation and, with respect to live donation, Quebec only addresses consent to the use of tissue for research purposes. Three of the five jurisdictions that do not exclude eggs explicitly state that “any dealing prohibited… is invalid as against public policy.” (British Columbia, Saskatchewan, and Yukon). One could reasonably argue that the buying, selling, and otherwise dealing in eggs, for a valuable consideration, is illegal in these jurisdictions. See, for example, Human Tissue Gift Act, RSBC 1996, c 211; Human Tissue Gift Act, RSS 1978, c H-15; Human Tissue Gift Act, RSY 2002, c 117.
16.
BlythE., “Fertility Patients' Experiences of Cross-Border Reproductive Care,”Fertility and Sterility94, no. 1 (2010): E11-e15; HughesE. and DeJeanD., “Cross-border Fertility Services in North America: A Survey of Canadian and American Providers,”Fertility and Sterility94, no. 1 (2010): E16-e19; InhornM. C. and PatrizioP., “Rethinking Reproductive ‘Tourism’ as Reproductive ‘Exile’,”Fertility and Sterility92, no. 3 (2009): 904–906. NygrenK.AdamsonD.Zegers-HochschildF., and De MouzonJ., “Cross-Border Fertility Care – International Committee Monitoring Assisted Reproductive Technologies Global Survey: 2006 Data and Estimates,”Fertility and Sterility94, no. 1 (2010): e4–e10. PenningsG.de WertG.ShenfieldF.CohenJ.TarlatzisB., and DevoeyP., “ESHRE Task Force on Ethics and Law 15: Cross-Border Reproductive Care,”Human Reproduction23, no. 10 (2008): 2182–2184. ShenfieldF.de MouzonJ.PenningsG.FerrarettiA. P.AndersenNyboe A.de WertG., and GoossensV., “The ESHRE Taskforce on Cross-Border Reproductive Care, 2010. Cross-Border Reproductive Care in Six European Countries,”Human Reproduction25, no. 6 (2010): 1361–1368. SmithE.BehrmannJ.MartinC., and Williams-JonesB., “Reproductive Tourism in Argentina: Clinic Accreditation and Its Implications for Consumers, Health Professionals and Policy Makers,”Developing World Bioethics10, no. 2 (2010): 59–69. WhittakerA., “Global Technologies and Transnational Reproduction in Thailand,”Asian Studies Review33, no. 3 (2009): 319–332.
17.
NygrenK.AdamsonD.Zegers-HochschildF., and de MouzonJ., International Committee Monitoring Assisted Reproductive Technologies, “Cross-Border Fertility Care – International Committee Monitoring Assisted Reproductive Technologies Global Survey: 2006 Data and Estimates,”Fertility and Sterility94, no. 1 (2010): Special Contribution e4-e10. HudsonN.CulleyL.BlythE.NortonW.RapportF., and PaceyA., “Cross-Border Reproductive Care: A Review of the Literature,”Reproductive BioMedicine Online22, no. 7 (2011): 673–685.
18.
See, for example, “Egg Donor, Surrogate Mother, Surrogacy India,”available at <http://www.youtube.com/watch?v=aKiSL8RpxAs&feature=related> (last visited February 20, 2013). See also, Center for Human Reproduction (CHR) in New York City, “Donor Eggs for Canadians in New York City,”available at <http://www.centerforhumanreprod.com/donor_eggs_canada.html> (last visited February 20, 2013): “Egg donor program in New York City offers a quick, anonymous alternative to donor IVF in Canada. A markedly increased number of Canadian patients have contacted the Center for Human Reproduction (CHR) in New York City in recent years, because of its unique egg donation program. CHR's program is a unique egg donor program in the US, offering, likely, the largest and most diverse egg donor pool anywhere in the world. The program is, however, especially relevant to Canadian patients because legal circumstances in the U.S. differ significantly from those in Canada, and, therefore, allow us to offer not only great choice of donor eggs for Canadians but also immediate access to an excellent donor.”.
19.
When prospective recipients choose egg providers on the basis of their genetic traits, it is illogical to characterize any payments made to these providers solely as payments for services rendered. If the payments were solely for services, the genetic features of the provider would be irrelevant.
20.
Payment is clearly above expenditures when the description of the payment is, for example, “$5,000 plus expenses.”.
21.
See ss. 22 and 24 of the original AHR Act for details of the Agency's objectives and powers. The AHRC was abolished through s. 722 of An Act to implement certain provisions of the Budget Tabled in Parliament on March 29, 2012 and other measures, S.C. 2012, c. 19 [hereinafter cited as the Jobs, Growth and Long-term Prosperity Act]. See also BaylisF., “The Demise of Assisted Human Reproduction Canada,”Journal of Obstetrics and Gynaecology Canada34, no. 6 (2012): 511–513.
22.
In this paper, we do not use the value-laden term “cross-border reproductive care” in part because of the false image that “care” conveys. As Eric Blyth reports, care “is not always present in the experiences of patients seeking fertility services in a country other than their own.” BlythE.ThornP., and WischmannT., “CBRC and Psychosocial Counseling: Assessing Needs and Developing an Ethical Framework for Practice,”Reproductive Biomedicine Online23, no. 5 (2011): 642–651.
23.
BlythE., “Fertility Patients' Experiences of Cross-Border Reproductive Care,”Fertility and Sterility94, no. 1 (2010): E11-e15.
24.
HughesE. and DeJeanD., “Cross-Border Fertility Services in North America: A Survey of Canadian and American Providers,”Fertility and Sterility94, no. 1 (2010): e16–19.
BlythE., “Fertility Patients' Experiences of Cross-Border Reproductive Care,”Fertility and Sterility94, no.1 (2010): e11–e15.
27.
HughesE. and DeJeanD., “Cross-Border Fertility Services in North America: A Survey of Canadian and American Providers”Fertility and Sterility94, no. 1 (2010): E16-e19.
28.
In 2011, Alison Motluk won silver for investigative reporting at the 34th annual National Magazine Awards for her article, “The Human Egg Trade: How Canada's Fertility Laws are Failing Donors, Doctors, and Patients,” cited in supra note 13. She also received an honourable mention in the SOGC Journalism Awards for Excellence in Women's Health Reporting (print category).
29.
Id.
30.
Id.
31.
Id.
32.
The Practice Committees of the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology, “Mature Oocyte Cryopreservation: A Guideline,”Fertility and Sterility99, no. 1 (2012): 37–43.
33.
GrifoJ. A. and NoyesN., “Delivery Rate Using Cryopreserved Oocytes is Comparable to Conventional In Vitro Fertilization Using Fresh Oocytes: Potential Fertility Preservation for Female Cancer Patients,”Fertility and Sterility93, no. 2 (2010): 391–396. Virant-KlunI.Bacer-KermavnerL.TomazevicT., and Vrtacnik-BokalE., “Slow Oocyte Freezing and Thawing in Couples with No Sperm or an Insufficient Number of Sperm on the Day of In Vitro Fertilization,”Reproductive Biology and Endocrinology9, no. 19 (2011): 19.
AHR Act as amended by the Jobs, Growth and Long-term Prosperity Act S.C. 2012, c.19. The Jobs, Growth and Long-term Prosperity Act was introduced nominally to implement provisions announced in the 2012 federal budget. In the budget, the government had announced that it would be winding down the AHRC. The Jobs, Growth and Long-term Prosperity Act also introduced a number of other reforms to the original AHR Act (a subset of which were in response to the SCC decision in the AHRA Reference).
37.
Reference re Assisted Human Reproduction Act, 2010 SCC 61, 3 SCR 457 [hereinafter cited as AHRA Reference]. The Quebec government challenged ss. 8 to 19, 40 to 53, 60, 61 and 68 of the AHR Act as ultra vires the federal government.
38.
AHRA Reference, at para 290 (per Justice Cromwell): “s. 12 is a form of exemption from the strictness of the regime which they impose and, to some extent, defines the scope of the prohibitions provided for in those sections.”.
39.
Id., at para 26 per Chief Justice McLachlin.
40.
AHR Act, s. 8 SI/2007-67 and Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137.
41.
AHR Act, s. 61.
42.
Section 753(1) of the Jobs, Growth and Long-term Prosperity Act S.C. 2012, c. 19 provides that “Sections 715 and 716, or any provision enacted by section 716 [i.e., s. 10 of the AHR Act as amended], come into force on a day or days to be fixed by order of the Governor in Council.” No date has yet been fixed. It is worth noting here that s. 10 of the AHR Act as passed in 2004 was in force from the date of passage of the Act (unlike ss. 8 and 12). With the revisions to the Act, the government realized that it needed to hold off on the section coming into force until the regulations were drafted (and did so through s. 753(1) of the Jobs, Growth and Long-term Prosperity Act). This avoids the absurd situation, present from 2004 until s. 10 was struck down by the SCC in the AHRA Reference in 2010, which we would argue prohibited anyone from altering, manipulating or treating any human reproductive material for the purpose of creating an embryo and obtaining, storing, transferring, destroying, importing or exporting eggs. (These activities were prohibited, except when in accordance with the regulations and a licence. Yet, no regulations or licenses were ever issued. Therefore there was actually no way for anyone to engage in these activities without violating s. 10.) Some might argue, against this interpretation, that anyone who undertook any of the activities set out in s. 10 at least once between August 22, 2003 and April 22, 2004 was legally permitted to continue such activities because of s. 71, known as the “grandfathering clause.”. However, this argument fails to notice that the grand-fathering clause cured the lack of a licensing scheme but not the lack of other regulations. Therefore, we would argue that, as no regulations were passed for the original s. 10 and yet the section was in force, the activities set out in the original s. 10 were illegal from 2004 (when the original AHR Act came into force) until 2010 (when the original s. 10 was struck down in the AHRA Reference).
“As section 12 is not yet in force, reimbursement of expenditures relating to donation, surrogacy and the transportation or maintenance of in vitro embryos may presently occur without a licence.” Health Canada, “Public Consultation Document: Reimbursement of Expenditures Under the Assisted Human Reproduction Act,” undated document (although the consultation period itself ended September 14, 2007), available at <http://www.hc-sc.gc.ca/hl-vs/reprod/hc-sc/public/_funds-frais/index-eng.php> (last visited February 20, 2013). Similarly, AHRC states: “Donors, those maintaining and transporting in vitro embryos, and surrogate mothers are currently allowed to be reimbursed for actual expenses they may incur,” available at <http://www.ahrc-pac.gc.ca/v2/aaa-app/wwr-qnr/ahra-alpa/prohibited-interdit-eng.php> (last visited February 20, 2013). However, neither document provides any explanation or defense of this claim. We would argue that it is simply incorrect; just saying something doesn't make it so.
Criminal Code, R.S.C. 1985, c. C-46, s. 7(4.1). [hereinafter cited as Criminal Code].
50.
For example, Criminal Code, ss. 7(3), 7(3.1) with 279.01 and 279.011.
51.
Libman v. The Queen [1985] 2 SCR 178.
52.
It is unlikely that the international comity element of the Libman rule would pose a problem in the context of this paper. Given what we know of current transnational trade, we are assuming that the trade is occurring in a jurisdiction within which such conduct is either not illegal or, if illegal, not subject to prosecution. Therefore, we will not explain or explore this element here.
53.
Libman v The Queen [1985] 2 SCR 178 at para 74.
54.
Id., at para 72.
55.
CurrieR., International and Transnational Criminal Law (Toronto: Irwin Law, 2010): at 424.
56.
For a full explanation of transnational application of law, see CurrieR., International and Transnational Criminal Law (Toronto: Irwin Law, 2010): at 412–424.
As this paper was going to press, there was a news report that 27 charges had been laid against Leia Picard and her fertility consulting company (Canadian Fertility Consultants) including charges for “buying or offering to buy sperm or eggs.” BlackwellT., “Illegal Purchase of Sperm, Eggs and Surrogacy Services Leads to 27 Charges against Canadian Fertility Company and CEO,”National Post, February 2013, available at <http://news.nationalpost.com/2013/02/15/illegal-purchase-of-sperm-eggs-and-surrogacy-services-leads-to-27-charges-against-canadian-fertility-company-and-ceo/> (last visited February 25, 2013). No details of the charges (including whether they include any transnational activity) are available yet.
59.
Sections 66–67 set out the process which must be followed for the making of regulations under the AHR Act (e.g., with some exceptions, they must be laid before Parliament and referred to the appropriate committee of each House).
The principle of non-commercialization and non-commodification is set out in s. 2(f) of the AHR Act and affirmed in the AHRA Reference by Chief Justice McLachlin. Section 2(f) states that: “Trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raises health and ethical concerns that justify their prohibition.” Commercialization and commodification are also clearly recognized as harms by Chief Justice McLachlin where she describes s. 12 as follows: “Section 12 addresses the related issue of permitted expenses. It seeks to ensure that credited expenses are confined to actual outlays, and do not cross the line into commercialized reproductive activities. This is the line that prohibits that which is considered inappropriate commodification, and permits that which is considered acceptable reimbursement.” AHRA Reference at para 111.
AHRC had a Memorandum of Understanding with Health Canada's Health Products and Food Branch Inspectorate. Under its terms, Health Canada was to provide inspection, compliance and enforcement services for the AHR Act under the direction of AHRC. There was also an agreement with the RCMP, but this agreement was not made public. Rather, it was referred to in AHRC documents as follows: “AHRC and the Royal Canadian Mounted Police (RCMP) have established roles and responsibilities in relation to the enforcement of the AHR Act and its Regulations. Where there is accurate and reliable information that an offence may have been committed, AHRC may, at its discretion and under the appropriate circumstances, refer matters to a law enforcement agency, including the RCMP, for investigation.” AHRC, “Assisted Human Reproduction Canada. Compliance and Enforcement Policy,” July 30, 2010, at 4, available at <http://www.ahrc-pac.gc.ca/v2/aaa-app/alt-formats/pdf/wwd-qnf/C-E-Policy-eng.pdf> (last visited February 20, 2013).
Of course, it is not the case that all instances of possible violations of law should be prosecuted. The concept and practice of prosecutorial discretion exists precisely to allow for some non-prosecution. However, the exercise of prosecutorial discretion is bounded. Unfortunately, as there has been no meaningful transparency in the enforcement of the AHR Act, there is no evidence that the non-prosecution of violations of ss. 7 and 8 and s. 10 (before the recent changes) was actually the result of legitimate exercises of prosecutorial discretion.
72.
CrozierG. K. and MartinD., “How to Address the Ethics of Reproductive Travel to Developing Countries: A Comparison of National Self-sufficiency and Regulated Market Approaches,”Bioethics12, no. 1 (2012): 45–54, at 48.
73.
Id., at 49.
74.
The Ethics Committee of the American Society for Reproductive Medicine, “Financial Compensation of Oocyte Donors,”Fertility and Sterility88, no. 2 (2007): 305–309, at 305.
We do not advocate an education and facilitation campaign directed at healthy volunteers (i.e., women who would not otherwise be undergoing egg retrieval and freezing). Rather, the focus here is on women who have frozen eggs they no longer intend to use for their own reproductive purposes, who can choose to have them destroyed or, alternatively, to donate them for reproductive or research use. The education and facilitation campaign would promote donation over destruction.
77.
AHR Act, as amended, ss. 44 and 58. Under s. 44 of the AHR Act, the responsibility for enforcement is given to the Minister of Health. Under s. 58, the Minister “may enter into agreements with any department or agency of the government of Canada or of a province or with any law enforcement agency with respect to the administration and enforcement of this Act.”.
