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Transnational Trade in Human Eggs: Law, Policy, and (In)Action in Canada

Published online by Cambridge University Press:  01 January 2021

Jocelyn Downie  and
Françoise Baylis
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Extract

In Canada (as elsewhere) there is a growing demand for human eggs for reproductive purposes and currently demand exceeds supply. This is not surprising, as egg production and retrieval is onerous. It requires considerable time, effort, and energy and carries with it significant physical and psychological risks. In very general terms, one cycle of egg production and retrieval involves an estimated total of 56 hours for interviews, counseling, and medical procedures (i.e., screening, hormonal stimulation, and egg retrieval). The screening carries risks of unanticipated findings with severe consequences for insurability (which can be catastrophic). The daily hormone injections can be painful and uncomfortable, causing cramping, abdominal pain, nausea, vomiting, bloating, mood changes, and irritability.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 41 , Issue 1 , Spring 2013 , pp. 224 - 239
Copyright
Copyright © American Society of Law, Medicine and Ethics 2013

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References

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Although there is not space to go into any detail in this paper, we note that all provinces and territories have legislation regarding human tissue donation and transplantation. Five provinces explicitly exclude eggs from the operation of this legislation (Ontario, Nova Scotia, PEI, Manitoba, and Alberta). Five other jurisdictions do not explicitly exclude eggs from their legislation and these four provinces and territory prohibit the buying, selling, or otherwise dealing in, directly or indirectly, for a valuable consideration of any tissue, where eggs would fit within their definition of “tissue” (British Columbia, Saskatchewan, Yukon, Newfoundland, and New Brunswick). The Northwest Territories and Nunavut legislation only deal with post mortem donation and, with respect to live donation, Quebec only addresses consent to the use of tissue for research purposes. Three of the five jurisdictions that do not exclude eggs explicitly state that “any dealing prohibited… is invalid as against public policy.” (British Columbia, Saskatchewan, and Yukon). One could reasonably argue that the buying, selling, and otherwise dealing in eggs, for a valuable consideration, is illegal in these jurisdictions. See, for example, Human Tissue Gift Act, RSBC 1996, c 211; Human Tissue Gift Act, RSS 1978, c H-15; Human Tissue Gift Act, RSY 2002, c 117.Google Scholar
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Payment is clearly above expenditures when the description of the payment is, for example, “$5,000 plus expenses.”.Google Scholar
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AHRC had a Memorandum of Understanding with Health Canada's Health Products and Food Branch Inspectorate. Under its terms, Health Canada was to provide inspection, compliance and enforcement services for the AHR Act under the direction of AHRC. There was also an agreement with the RCMP, but this agreement was not made public. Rather, it was referred to in AHRC documents as follows: “AHRC and the Royal Canadian Mounted Police (RCMP) have established roles and responsibilities in relation to the enforcement of the AHR Act and its Regulations. Where there is accurate and reliable information that an offence may have been committed, AHRC may, at its discretion and under the appropriate circumstances, refer matters to a law enforcement agency, including the RCMP, for investigation.” AHRC, “Assisted Human Reproduction Canada. Compliance and Enforcement Policy,” July 30, 2010, at 4, available at <http://www.ahrc-pac.gc.ca/v2/aaa-app/alt-formats/pdf/wwd-qnf/C-E-Policy-eng.pdf> (last visited February 20, 2013). (last visited February 20, 2013).' href=https://scholar.google.com/scholar?q=AHRC+had+a+Memorandum+of+Understanding+with+Health+Canada's+Health+Products+and+Food+Branch+Inspectorate.+Under+its+terms,+Health+Canada+was+to+provide+inspection,+compliance+and+enforcement+services+for+the+AHR+Act+under+the+direction+of+AHRC.+There+was+also+an+agreement+with+the+RCMP,+but+this+agreement+was+not+made+public.+Rather,+it+was+referred+to+in+AHRC+documents+as+follows:+“AHRC+and+the+Royal+Canadian+Mounted+Police+(RCMP)+have+established+roles+and+responsibilities+in+relation+to+the+enforcement+of+the+AHR+Act+and+its+Regulations.+Where+there+is+accurate+and+reliable+information+that+an+offence+may+have+been+committed,+AHRC+may,+at+its+discretion+and+under+the+appropriate+circumstances,+refer+matters+to+a+law+enforcement+agency,+including+the+RCMP,+for+investigation.”+AHRC,+“Assisted+Human+Reproduction+Canada.+Compliance+and+Enforcement+Policy,”+July+30,+2010,+at+4,+available+at++(last+visited+February+20,+2013).>Google Scholar
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Of course, it is not the case that all instances of possible violations of law should be prosecuted. The concept and practice of prosecutorial discretion exists precisely to allow for some non-prosecution. However, the exercise of prosecutorial discretion is bounded. Unfortunately, as there has been no meaningful transparency in the enforcement of the AHR Act, there is no evidence that the non-prosecution of violations of ss. 7 and 8 and s. 10 (before the recent changes) was actually the result of legitimate exercises of prosecutorial discretion.Google Scholar
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We do not advocate an education and facilitation campaign directed at healthy volunteers (i.e., women who would not otherwise be undergoing egg retrieval and freezing). Rather, the focus here is on women who have frozen eggs they no longer intend to use for their own reproductive purposes, who can choose to have them destroyed or, alternatively, to donate them for reproductive or research use. The education and facilitation campaign would promote donation over destruction.Google Scholar
AHR Act, as amended, ss. 44 and 58. Under s. 44 of the AHR Act, the responsibility for enforcement is given to the Minister of Health. Under s. 58, the Minister “may enter into agreements with any department or agency of the government of Canada or of a province or with any law enforcement agency with respect to the administration and enforcement of this Act.”.Google Scholar