It's been nearly 40 years since Louise Brown, the first baby conceived as a result of in-vitro fertilization, was born. Since then, IVF and other forms of assisted human reproduction have become normal procedures in most developed countries. Many of these fertility services, such as egg freezing, surrogacy and prenatal genetic testing – which could one day allow parents to choose their child's eye colour, athletic ability and even sexual preference – have legal and ethical consequences that need careful debate and considerate legislation.
Canada is failing on both these counts. Rather than create a system to help would-be parents access the services they need in a timely, efficient manner, the federal government continues to treat many aspects of the assisted reproduction process as dangerous, unethical and even criminal.
Passed in 2004, the Assisted Human Reproduction Act was designed to protect the health and well-being of children. Instead, it helped create a quasi-black market, while driving some prospective parents to look outside Canada for help. And as medical technology advances, many of the thorny questions – surrounding issues such as prenatal genetic testing, the definition of a parent in cases of assisted reproduction, using the DNA from multiple
individuals to create a baby – become ever more complicated.
Unfortunately, there doesn't seem to be much political will to resolve these glaring issues. The federal government never wrote the regulations that were needed to enforce the act. An agency created to oversee the law was formally disbanded in 2012, although it was clear it didn't have the power to do much of anything.
In 2010, the Supreme Court of Canada struck down several parts of the federal assisted-reproduction law, ruling that they interfered with the provinces' authority on delivery of health care. Despite this, most provinces have not taken up the issue and many fertility services remain largely unregulated.
If it weren't so unfortunate for the individuals involved, Canada's current approach to assisted reproduction would be laughable.
Consider this: Federal law makes it a criminal offence to buy sperm or eggs from a donor or person acting on behalf of a donor in Canada. But it's perfectly acceptable for Canadians to buy eggs and sperm from the United States – where donors are paid – to help them conceive.
It's also against the law to pay a surrogate (a woman who carries a pregnancy for someone else), although it's legal to reimburse her for any expenses. And more than a decade after the law came into force, the federal government still hasn't spelled out what constitutes "reasonable" reimbursement.
Sara Cohen, a fertility lawyer based in Toronto, says the law is "set up in such a way that I think it is hurting everybody."
There is virtually no oversight of how fertility clinics operate, the fairness of fees or the quality of services they provide to patients – many of them desperate and vulnerable. There's no arms-length, independent website where Canadians can view inspection reports, statistics on procedures or other information that can give them a glimmer of insight into whether the clinic where they're considering spending thousands of dollars can actually deliver on its claims.
Numerous experts I've interviewed say quality varies greatly from clinic to clinic. Last May, Ontario's College of Physicians and Surgeons banned the head of a London, Ont., fertility clinic from practising after it found he put two patients' lives at risk by giving them questionable, risky treatments. It's one of the few times a regulator has taken such action. How many other cases like these are going under the radar?
There's also little oversight into the types of services clinics provide, which is frightening when you consider how quickly the field is advancing. For instance, doctors are able to screen embryos for a growing roster of potential diseases, such as cystic fibrosis and sickle-cell anemia.
It's possible that clinics will soon be able to screen for personality traits and aesthetic appearance. Should they continue to have free rein?
According to a 2012 study based on Statistics Canada data, approximately 11.5 to 16 per cent of all heterosexual couples aged 18 to 44 experience infertility. The actual number is much higher when you consider same-sex couples, single women and others who need help conceiving.
Make no mistake: Canada's half-baked, nonsensical legislative framework hasn't stopped the sale of sperm or eggs, or the payment of surrogates. Criminalizing aspects of these services has only driven them underground and created a "grey" market.
In other cases, Canadians pay large sums to agencies that import sperm or eggs from the U.S., where donors receive payment, causing many to question why Canada doesn't simply create a framework to make such transactions legal between Canadian donors and recipients. Others simply travel abroad to find a surrogate in countries, such as the United States, that have clearly established rules and regulations surrounding what is, and is not, allowed.
To begin addressing these problems, Canada desperately needs a national dialogue on the subject of assisted reproduction, says Dr. Neal Mahutte, the president of the Canadian Fertility and Andrology Society. "If you really want to do things properly in terms of government and legislation, there needs to be a constant communication," he says. "That conversation is not happening right now."
Yes, Canadian law has prevented a booming commercial market in unfertilized eggs and embryos by which fortunes are created on the backs of women and unborn children. But the fears of that happening were never realistic in the first place. The real victims here are the people who need the help of assisted reproductive technologies to conceive and have the misfortune of living in Canada.