Issues Relating to Embryo Donation - by Sherry Levitan (Winter 2011)
Printer-friendly versionISSUES RELATING TO EMBRYO DONATION
by Sherry Levitan
Winter 2011
If I remember Grade 9 biology accurately, there are only three essential ingredients required in order to conceive a child: one egg, one sperm and a uterus. Mathematically, the permutations and combinations of mixing and matching these three basic ingredients should lead to a finite number of possibilities of parentage. Clearly, mathematicians have no place in the field of infertility, as my experience has shown that the possibilities are actually endless. How many different ways can you create a family? Here’s one that your neighbour hasn’t thought of!
Recently, John and Jane came to see me. They had been undergoing various infertility treatments for over three years and their families were only vaguely aware of the reality of their struggle. John and Jane were in their early 30’s, and although their physician was willing to keep trying IVF for a bit longer, the concept of using donor egg in order to achieve a pregnancy was already on the radar screen. One day, at a family gathering, Jane’s cousin, Marta, told Jane her story of infertility struggles. Although they had been close as children, Marta had moved away right after high school, and the two had lost touch. Jane was completely unaware of Marta’s journey. Several days after the family party, Marta called Jane and told her that she had four embryos left in cryopreservation, and offered to donate them to Jane. The offer was quickly accepted and John and Jane are now in the process of completing all the steps required by their physician before the donation can result in a frozen embryo transfer.
Another client, Stephanie. Stephanie and her spouse had three children, but the youngest, faced multiple physical challenges, died tragically but not unexpectedly. Somehow, even after a year of mourning, Stephanie couldn’t shake the feeling that her family was no longer complete. Stephanie and her husband decided to have another child, but although all of her children had arrived without the need for medical intervention, after twelve months of unprotected sex, the couple had not achieved a pregnancy. A consultation with an infertility expert followed and the recommendation of proceeding with donor egg was made. A compassionate IVF nurse called Stephanie and told her of another family who had a few cryopreserved embryos, and were looking to donate them. Something about the offer instantly struck a chord with Stephanie, and the embryos were donated on an anonymous basis.
Rachel, a single teacher in her early 40’s, had decided to pursue pregnancy on her own. She underwent several failed IUI cycles and after sharing her disappointment in a support group, another single woman approached Rachel. This woman told Rachel that she had used a donor egg in order to conceive a child. She had given birth to a baby a few months earlier, and felt that her family was complete. She would not be using the remaining embryos. This kind woman offered the few remaining embryos to Rachel. After several thoughtful conversations, these two women hatched a plan that included details of how they would share this information with the children and how they would share medical information over the course of time. Embryo donation is not yet common, but in certain circumstances it feels right and makes sense. Generally, the people donating (the “donors”) must feel that their family is complete in order for them to be able to psychologically let go of the embryos. The couple accepting the donation (the ”recipients”) must be comfortable in raising a child that is not genetically related to either one of them.
In several cases, the Supreme Court of Canada has been called upon to classify the status of an embryo at law in several different cases. Although this issue has not been legislated, the Supreme Court of Canada has made it clear that an embryo is not a “human being” at law. The Assisted Human Reproduction Act has been drafted in a consistent manner. Therefore, under Canadian law , a “human being” is not recognized until born. As a result, the embryos are not “persons”, although it is not clear exactly what they are. Embryos are donated and not adopted. There is an American organization modeled on Christian principles which takes an alternative view and requires all the steps of adoption before recipients can obtain the embryos. This organization also requires that all recipients be married and heterosexual. These are requirements imposed by this one specific agency but there is no legal reason for these requirements. If embryo donation is done privately, any person, regardless of marital status or sexual orientation, is free to participate.
As with any area of reproductive technology, embryo donation is fraught with emotional issues. Although this is not an adoption, there are many similarities. Counselling as well as a proper education in rearing a child to whom one has no genetic connection, although not mandatory, can be very helpful. Counselling is almost always one of the physician’s or clinic’s pre-requisites to proceeding. There are several issues that need to be resolved before the donation can be finalized. Will the arrangement be known or anonymous? In other words, will the donors and the recipient meet before the donation? Will they agree to exchange identifying information and agree to share medical information as time goes on? Will each couple tell their children about the other child or children? Will the children meet the other family at a point in time?
Does embryo donation work? Absolutely. Is it easy? Absolutely not. Matching donors and recipients is a painstaking process and requires tremendous sensitivity to the needs of all parties. Several respected clinics are in the process of setting up their own internal programs, so checking with your clinic is a good place to start.
What are the major benefits to embryo donation? For some it is the idea of “rescuing” an embryo, and for others who require the help of donor egg it is the significant cost savings of proceeding with embryo donation. From my point of view, if one is considering adoption and is prepared to raise a child to whom neither parent has a genetic connection, embryo donation gives the parents control over the pre-natal environment thus giving the child the best chances at being born healthy.
Embryo donation carries its challenges. If you are interested in accepting a donation, it is very difficult to find embryos which are available for donation. Once you do find the embryos, the Assisted Human Reproduction Act prohibits the “purchase” or “sale” of embryos, so the donation must be altruistic. Most people are willing to accept the wishes of the donors in terms of whether the donation will be known or anonymous, but if either side has a strong preference, then you need to find a like-minded donor.
Once you have found a donor (or a recipient) there are a few more layers of administrative attention that are involved. First, the clinic will require that all parties undergo counselling, and further medical testing may be necessary. In addition, the clinic will request that each party meet with a lawyer who is experienced in the area. The idea is that in order to effectively relinquish rights, the donors must know what those rights are. The recipients must understand their respective rights and obligations. Each side should retain their own lawyer, who should be someone experienced in the field. Questions the lawyer should answer include:
• Can the donors change their minds and later obtain custody of any child born?
• Can the donors change their minds and prevent the recipients from using any embryos which are still in cryopreservation?
• Can the donors be held liable for child support in the future?
• Is a pre-conception agreement necessary?
• Can we enter into an agreement later, if a pregnancy is achieved? (hint: the correct answer is absolutely not)
If you choose to donate your embryos, you may wish to ensure that there is contact in the future and that you receive annual updates on the child’s well-being. You may wish to tell your other children about the existence of this other relative. On the contrary, you may wish to avoid all contact except if the need arises for further medical information. These are highly personal issues which should be resolved in a way that makes all parties comfortable.
Are you thinking about donating your embryos? Are you considering accepting a donation of embryos? If so, how should you start? The first step should be to contact your physician. It is possible that they have kept a list of potential donors and recipients. If the clinic is not able to be helpful, contact the writer for further assistance. I would be pleased to assist in any meaningful way.
About the author
Sherry Levitan is a lawyer practicing third party reproduction law in Toronto.
References
All names and some identifying information have been changed in order to protect the clients’ right to confidentiality.
2 The Assisted Human Reproduction Act, S.C. 2004
3 The writer has not conducted a review of the Civil Code, therefore the summary of the status of law as it pertains to embryos excludes the provincial laws of the Province of Quebec.
4 The Assisted Human Reproduction Act, S.C. 2004