Committee members heard reams of testimony and argued bitterly among themselves. Some MPs, such as committee chair Bonnie Brown, sought to protect women and couples from the industry itself. She voiced particular concern for egg donors, at one point asking a fertility doctor, “Is there any other medical procedure that you know where either males or females ingest drugs for the purpose of preparing them for an invasive procedure during which something is removed from their body for which they are paid money?” Others, such as Liberal MP Carolyn Bennett, saw parents’ needs as the highest priority. Many witnesses argued that donors would not come forward unless they were compensated, and that a shortage would result. This was especially likely in egg donation, they said, which, unlike sperm donation, involved much more than a trip to a private room with a girlie magazine.
Ultimately, the law reflected the royal commission’s concern, stating, “No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.”
In the years since the act was passed, however, Canada has found itself in the uncomfortable position of banning the purchase of gametes in principle but not in practice. Other countries, such as the United Kingdom, also ban their purchase but have strict enforcement provisions backing the ban. The Canadian law, by contrast, was never completed. The sections dealing with prohibited activities, like the sale of eggs, are done and in force, but certain parts, dealing with activities that are allowed but “controlled” — including the reimbursement of donor expenses — can’t be proclaimed until regulations are produced setting out the details of how the system will work. Those regulations are still pending six years later.
The unproclaimed sections of the law suggest that reimbursement will only be permitted for very specific expenses and by people expressly licensed for the purpose. However, without the regulations, the various players have been left to interpret the law on their own. Some would-be parents travel to countries where eggs can be legally purchased. Of those who stay in Canada, some still employ egg donors but rely on the grey areas in the law. The $7,000 Heather Cox was paid for her second donation, for instance, was called a reimbursement for concrete expenses — even though, according to her, she negotiated the fee up front and was never asked to provide receipts.
Another option, which takes advantage of the open market for eggs in parts of the United States, has also gained favour. Instead of finding donors through Canadian clinics, many parents work with US-based agencies, which match them up with young women — mostly American but some Canadian — who fly in days before the retrieval, their ovaries already ripe with eggs. Because the money has gone through a legitimate agency ostensibly outside the jurisdiction of Canadian law, this tactic has become, for many, the preferred solution to the domestic ban.
hortly after “Ania” and her husband got married in 1998, they discovered that he was azoospermic, producing no live sperm at all. Initially, they assumed Ania’s eggs were fine, but after perhaps a dozen artificial inseminations, a miscarriage, and a failed attempt at in vitro fertilization, they realized she was infertile, too. The Toronto-area couple decided to adopt instead, and soon became parents for the first time.Two years later, they were on track to adopt a second child when, just days before the baby was expected to be born, the arrangement fell through. They were devastated. “I thought, ‘I can’t go through something like that again,’ ” Ania says. So they began to focus on using donor eggs and sperm to conceive.
Ania started calling clinics in January 2008 and was struck by the inconsistencies she encountered. “No two were the same,” she says. One clinic said it didn’t have access to donor eggs. Another had clients willing to “share” their eggs in return for a reduced fee. Another told her they could connect her with a paid donor in Canada, explaining that they had been “grandfathered in” under the new law. And others advised her to arrange for donor eggs through agencies based in the United States.
She understood that these agencies were essentially a way to get around the law, but she didn’t feel she was actually breaking it. “It’s basically circumventing,” she says. She would pay the agency, and the agency would pay the egg donor; all the money changed hands elsewhere. Egg donation itself was not illegal, only the purchase of eggs, so she understood that the donor could fly in and have the eggs extracted here without risking a violation of the ban.
Sherry Levitan, a Toronto lawyer who specializes in what’s commonly referred to as third-party reproductive law, says the legality of using an out-of-country agency to help commit an act that is illegal in this country isn’t quite so clear. It would ultimately come down to how a judge interpreted the transaction — whether there was a purchase and where it was deemed to have happened. But none of the clinics Ania spoke with raised this risk. “They didn’t mention anything about the legality at all,” she says. “They just said, ‘We do it.’ ”
The Canadian Fertility and Andrology Society, which provides leadership in the field of reproductive medicine, insists that no Canadian clinic would knowingly work with paid donors, regardless of where they were paid. Roger Pierson, a professor at the University of Saskatchewan and spokesperson for the cfas, says that when Canadian fertility doctors find out a donor is being paid for more than just expenses, they’re obligated to cancel the cycle. “There’s no clinic in the country that would do that procedure with a paid donor,” he told me, adding that, unfortunately, sometimes donors and couples don’t tell the truth.
That wasn’t Ania’s experience. She and her husband had no trouble finding clinics happy to work with paid donors. They first went through ReproMed, a Toronto clinic, which put them in touch with an agency called Our Fairy Godmother, run out of Naples, Florida, by a Canadian woman named Cathy Ruberto who had been ReproMed’s clinical director for fifteen years. She had been a witness during the drafting of the ahr Act and had argued strongly that without payment there would be no donors. The year the law was passed, she left the country and set up her agency south of the border.
