SUPREME COURT DECISION: RULING ON QUEBEC’S CHARTER CHALLENGE WHAT IT MEANS FOR PATIENTS - by Dr. Marjorie Dixon - SUMMER 2011

SUPREME COURT DECISION: RULING ON QUEBEC’S CHARTER CHALLENGE
WHAT IT MEANS FOR PATIENTS

by Dr. Marjorie Dixon

On December 22nd, 2010, the Supreme Court of Canada (SCC) made headlines as it announced its verdict on an appeal that had been outstanding for precisely 19 months. This marked the culmination of a pivotal legal battle for infertile Canadians as the province of Quebec asserted a constitutional challenge against aspects of the Assisted Human Reproduction Act (AHRA) of 2004. Quebec, supported by Alberta, Saskatchewan, and New-Brunswick declared that certain articles of the Act were unconstitutional because they violated the right of provinces to regulate health care. In the resulting decision the SCC upheld several articles of the legislation as properly within the federal government's jurisdiction but found that other articles were an infringement on the provinces' right to regulate health care. This created somewhat of a media sensation, but how did it really affect patients and the infertile community at large? The short answer is that "it didn’t". Rather, it left aspects of the law that have entailed serious consequences to the infertile unaddressed, particularly as it pertains to third-party ART.

What is third-party reproduction?

Third-party reproduction is the process of creating embryos with the assistance of another person's gametes (either eggs or sperm). It essentially allows people to have a baby who have no other way of conceiving. Treatment most commonly involves the use of donor sperm, but may also involve donor eggs and/or a gestational carrier. The primary difficulties associated with third-party reproduction are that the current Assisted Human Reproduction Act makes it difficult, if not impossible, to obtain donor sperm/eggs or to find a gestational carrier, as it is illegal to pay for sperm, eggs or surrogacy directly. This law forces some individuals to use dangerous or prohibited alternatives and/or to use services outside of Canada if they are to hold any hope of getting treatment. Furthermore, no legislation exists that clearly spells out the rights and responsibilities of donors and intended parents.
In a box on the side:

Here are two real life scenarios demonstrating the serious need of the infertile for gametes and/or surrogates:

Real Life Scenario #1:

Jennifer and Miguel knew that they would require assistance for their family building plans. You see, Jennifer stopped having periods at the young age of 26 years and was advised by her reproductive endocrinologist that her only options for childbearing would be either through egg donation or adoption.

When the couple decided to proceed via ART (assisted reproductive technologies), they were faced with several barriers to care. The Assisted Human Reproduction Act (AHRA) had been drafted as a bill and essentially dried up the pool of egg donors in Canada. Though many qualified and experienced physicians existed in their current jurisdiction, they were advised that their best alternative was to proceed with a clinic in the USA. Though extremely cost prohibitive, the couple reluctantly agreed to proceed via this route.

Real Life Scenario #2:
Pierre and Ken had been partners for two years when they decided to build their family. Their son, Jacob, was born using donor eggs and Ken’s sperm. Once referred to a fertility specialist, the clinic arranged for the donor eggs, and Pierre and Ken identified someone who was willing to be a gestational carrier for them. The egg was fertilized and implanted into the carrier's uterus using IVF and ICSI.

When Jacob was two years old, Pierre and Ken returned to the very same clinic to repeat the procedure for their second child. However, they soon learned that the laws governing third-party reproduction had changed in Canada. Furthermore, it is no longer legal to pay for donor eggs or to similarly appropriately compensate someone who agrees to be a gestational carrier. These new rules make family building for the couple much more difficult.

Who is affected and who uses third-party reproduction?

Third-party reproduction services are primarily used by:
•   Heterosexual couples when the male partner has no sperm or a low sperm count (donor
sperm).
•   Single or lesbian women (donor sperm).
•   Women who are unable to provide their own eggs because of age, a genetic disorder,
premature ovarian failure or treatment for a medical condition like cancer (donor eggs).
•   Fertile couples who are worried about passing along harmful genes to a child (donor
sperm, donor eggs).
•   Single men and gay couples (donor eggs, gestational carrier).
•   Women who have an irregular or missing uterus, or for whom other assisted reproduction
services have failed (gestational carrier).

The Supreme Court’s decision on Quebec's challenge of the legislation was ultimately split among the different articles in contention, but it upheld the right of the provinces to regulate health care, including fertility clinics. However, Article 12 was maintained as well within the federal jurisdiction and therefore direct payment of fees for eggs or sperm, gestational surrogacy and any related third-party expenses remain prohibited. In the months leading up to the Supreme Court’s decision, it was hoped by many that if this article were successfully appealed, an opportunity to improve upon it would have surfaced.

Prior to the AHRA's acceptance, the federal government was repeatedly cautioned by stakeholders of the adverse effects that the proposed regulations pertaining to third-party reproduction might have on the infertile community. Sadly these newly adopted federal regulations have now effectively jeopardized easy access to safe options and fuelled a black market for reproductive materials and services.

Where do we turn now?

While the legislation was created with the intention of shielding Canadians engaged in third-party ART from any potential harm, it is ironic that its primary repercussion is to have restricted access to treatment for those who would most benefit from its safe delivery. The Canadian infertile population NEEDS TO MOBILIZE ITSELF and clearly communicate to government officials that the current situation is sub-optimal at best. The recent report of the Expert Panel on Infertility and Adoption in the Province of Ontario equally asserts that "Ontario must develop a system that would support Ontarians needing these services – for example, through developing provincial regulations governing third-party reproduction and establishing a province-wide donor and surrogacy bank.” In order to protect Canadian patients and provide reasonable access to third-party ART, our federal law-makers must adopt the same attitude.

About the author
Dr. Marjorie Dixon is a Reproductive Endocrinologist/Fertility specialist and Assistant Professor in the Department of Obstetrics and Gynecology at the University of Toronto. Of note, she was appointed to the Province of Ontario's Expert Panel on Infertility and Adoption which submitted its report entitled "Raising Expectations" to the McGuinty government in August, 2009. The government has yet to react to this report. Dr. Dixon, in partnership with Drs. Sierra and Weisberg, operates the First Steps Fertility Clinic in the Greater Toronto area.

Reference

Assisted Human Reproduction Act, 2004 Government of Canada.