12/07/2012 05:26 EST | Updated 02/06/2013 05:12 EST

I'll Take a Pre-Made Embryo To Go, Please

young woman looking at...

There has been a veritable flood of articles in Canadian media recently about the practice of California IVF: Davis Fertility Center Inc. creating embryos to sell to clients to be used in IVF. See, for example, Wendy Leung's "Should IVF patients be allowed to buy embryos?", Sharon Kirkey's "For Sale: 'donor embryos' newest addition to world of artificial procreation" and "Marni Soupcoff on the sale of fertilized embryos: how much for that blastocyst in the window?"

As a lawyer practising in fertility law with my ear to the ground and an active embryo donation practice, California IVF's practice wasn't news to me. In fact, over the past three weeks I have made as many presentations about embryo donation, all of which began with a statement about what embryo donation in Canada is not (being the practice in which California IVF is engaging).

In Canada, it is illegal to purchase (but not to sell) donor eggs or sperm (punishable by up to 10 years in jail and/or a $500,000 fine), but it is legal to import donor eggs or sperm which were paid for abroad (see my earlier post here on this topic). It is also illegal to purchase or sell embryos in Canada (also punishable by up to 10 years in jail and/or a $500,000 fine). Although Bill C-38 (formerly known as the Omnibus Bill) introduced new legislation this past June that, when it takes effect, will regulate the importation of donor eggs into Canada (a practice which is currently unregulated), Bill C-38 and the Assisted Human Reproduction Act are curiously silent when it comes to regulating the importation of donor embryos into Canada.

Altruistic embryo donation, though, is legal and in my opinion, an excellent option worth consideration when a person has embryos left over from their own IVF cycle(s) (the other options being discarding the embryos, donating them to medical research or indefinite cryopreservation).

As a whole, the articles focus their collective outrage about California IVF's practices on the aspect of purchasing and selling donor embryos. While this practice is strictly prohibited in Canada and certainly raises ethical concerns for some who argue that it is commodification of human life, I would argue that for many of us who practice in the fertility sphere, it's not the exchange of money that is so unconscionable. In fact, I would make an educated guess that while practitioners in Canada respect the law, most are strongly opposed to the AHRA's prohibition on the sale of gametes and believe that it is bad policy (the same is not necessarily true about the purchase and sale of embryos).

Based on my conversations with fertility lawyers and clinicians, the ethical concern and associated uproar isn't about the sale of embryos per se, but about clinicians creating embryos at their discretion without any particular parents in mind, using the characteristics that the clinicians determine are most likely in demand, which the clinicians then try to sell to potential intended parents. Clinicians creating embryos out of donor eggs and donor sperm for an infertile individual or couple's use at the request of the parent(s) -- it happens all the time. Clinicians creating embryos with the hope that at some point a parent will show up and purchase the stockpiled embryos -- this is what is so upsetting to so many.

Legally, other than the commodification issue, there is nothing at odds with Canadian law about California IVF's practice, assuming both the sperm donors and the egg donors have provided proper consent. Why is it, then, that this is so disturbing to so many of us, myself included? Dr. Laskin of LifeQuest IVF was quoted as saying that, that while many of his colleagues are uneasy with what's happening in California, "[t]wo to five years from now, people may not even bat an eye at this."

This may be true, but for now, I agree with Francoise Bayliss that it is preferable (though not necessarily practical) to use one of the thousands of embryos indefinitely cryo-preserved in the clinics across Canada.

Note: this article should not be relied on as legal advice.