The Trouble With Buying Eggs and Sperm Over the Border

06/21/2013 12:27 EDT | Updated 08/21/2013 05:12 EDT

I'm in the midst of attending a conference where it is clear that most of the participants feel very strongly against both commercialized egg and sperm donation, as well as against anonymous gamete donation. These are not rare positions in Canadian circles, and are well-regarded in legal and other academic circles. In its most basic terms, the argument against commercialization of human gametes is that it is morally repugnant to put a price on that which creates life and/or that it may induce women to participate in a non-necessary medical procedure. The argument against anonymous gamete donation, at its most basic, is that it is not in the best interest of the children conceived from the use of these donor gametes who have the right to know their biological origins.

For years now, ever since the Assisted Human Reproduction Act became law back in 2004 and prohibited the purchase of donor gametes from a donor or a person acting on behalf of a donor, most donor sperm used in Canada has been imported via the U.S. or other countries. Much of that sperm is paid for by the sperm bank in a jurisdiction where it is legal to pay for gametes. The sperm is then purchased either by an importer of sperm from Canada or directly by Canadian parents. Over the past couple of years, the same situation has become viable when it comes to donor eggs as the technology to vitrify and thaw the ova is now available so now there are not only sperm banks but egg banks, too.

My best guess is that because of the restrictive and shockingly severe criminal sanctions in the AHRA (i.e. up to 10 years in jail and/or $500,000 fine), more and more Canadian clinics and patients are going to turn to importing donor eggs as opposed to going through donor ova cycles here. To make a long story short, whether or not this is legal is a nuanced answer where the devil is in the details but suffice it to say that I think it is possible to carefully work within the confines of the AHRA to import ova into Canada in a legal manner.

The problem? Here it is: at this point, most egg banks in the U.S. offer only anonymously donated eggs (it seems to me that the push to use known or open-id gametes is generally much stronger in Canada than the U.S.). Further, my best guess is that all of the egg banks pay the donors for the eggs. Accordingly, in a quest to prohibit commercialized gamete donation and anonymous donation, we have pushed Canadian clinics and parents toward what many will undoubtedly see as a legally preferable process than trying to negotiate the legislative minefield that is the AHRA (which fails to clarify what is an appropriate reimbursement with the potential penalty ranging from 5-10 years in jail and/or $250,000-$500,000 in fines).

This will likely result in far increased use of banked ova which were paid for in the U.S. and provided on an anonymous basis. Further, whereas when a donor participates in an egg donation cycle in Canada, we can oversee many aspects of the process -- we know she has publicly funded health care available to her, we can monitor the quality of her care, there are laws specifically targeted to ensure that she consents to the procedure, there is a legal system available to her if she were to suffer damages, and there are resources (such as lawyers, psychologists, etc.) available to her.

We lose all such control over the process of egg donation and the resources available to a donor when the donation cycle happens outside of our borders. So, while the criminal provisions of the AHRA may end up keeping our backyard clean, it is at the loss of being able to do a better job with a uniquely Canadian perspective and bent regarding assisted reproductive technologies at the expense of the donors and the children born through the use of donor gametes.

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