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Should Buying Donor Eggs Carry a Criminal Charge?

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On April 22, CBC's The National aired a segment (Frozen Human Egg Trade) in which reporter Kelly Crowe discussed how new technologies have progressed to enable human eggs to be retrieved, cryopreserved, banked in the U.S., and shipped to recipients in Canada. Dr. Matt Gysler, a fertility specialist at ISIS Regional Fertility Centre in Mississauga, Ontario, openly stated that his patients frequently purchase and use these eggs for their reproductive purposes in Canada.

Dr. Gysler opined that just as it is legal to pay for frozen sperm imported from the U.S., so too, then, must it be legal to pay for eggs cryopreserved in the U.S. and import those into Canada. CBC interviewed Sherry Levitan, a fertility lawyer, who disagreed with Dr. Gysler's analysis. She stated that "it's not a defence to say 'but you said it was ok for sperm'..." and that she believed people importing these eggs could face criminal prosecution.

Unsurprisingly, this program was followed in quick succession by a number of further stories on CBC and other media. Suffice it to say that any Canadian suffering from infertility or looking to build a non-traditional family through the use of donor eggs likely absorbed the message that purchasing these banked eggs is illegal.

I respectfully disagree.

It is incomplete to state that the Assisted Human Reproduction Act (known as the "AHRA") prohibits the purchase of ova or sperm; the AHRA only prohibits the purchase of ova or sperm from a donor or a person acting on behalf of a donor. The World Egg Bank, depicted in The National segment, has a program whereby it purchases eggs from U.S. donors and stores them until such time as they are purchased by an intended parent.

With recent technological advances, the eggs could conceivably be bought by an intended parent years after their retrieval. The egg donor is paid, though, at the time of retrieval, regardless of when or whether an intended parent purchases the eggs from the Bank, much in the same way that sperm banks function. Accordingly, the intended parent is purchasing eggs, but is not purchasing eggs from a donor, nor is the parent purchasing eggs from a person acting on behalf of a donor.

As Dr. Gysler mentions, Assisted Human Reproduction Canada has condoned the practice of purchasing frozen sperm from the U.S. and importing it to Canada. To my mind, the reason that the purchase of sperm from a sperm bank is legal is not because of the Semen Regulations (yes, there is such a thing) with which all imported semen must comply, but because the sperm is not purchased from a donor or a person acting on behalf of a donor; the sperm bank (and now the egg bank) is not acting on behalf of the donor, but on its own behalf.

The issue, then, has little to do with whether a payment over the Internet is found to be a payment made in Canada, as stated by Levitan. In my opinion, even if the payment for a cryopreserved banked egg is made in Canada, such a payment is not prohibited by the AHRA and is therefore legal.

Two lawyers disagreeing over a legal analysis isn't particularly interesting to anyone other than the lawyers themselves. What is interesting, though, and the reason you ought to care about our differing legal analyses, rests precisely on the point where Levitan and I do, in fact, agree: Despite the fact that I am confident in my legal analysis, I, too, continue to be concerned that potential clients who engage in such a transaction could open themselves up to an investigation or to criminal charges.

A strong argument that one has acted within the confines of the law is of limited comfort when faced with the risk of criminal charges, especially where the penalty for contravening the law is up to 10 years in jail and/or a fine of $500,000.

As fertility lawyers, neither I nor Levitan should be in a position where we must advise clients on a daily basis that the law regarding egg donation is so unclear that despite best efforts to work within the confines of the law, the potential for being investigated and even criminally charged remains.

Even more so, people struggling to build their families who must rely on third party reproductive technologies ought not be put in this untenable position.