Imagine that you do not know the identity of one or both of your genetic parents. If you were adopted, then you would have access to records that would have been created and preserved by government and that provide you with information about your genetic parents’ social, cultural and medical history. Your genetic parents’ identifying information would be made available to you, too, by many of the provincial and territorial governments (sometimes depending upon whether the other party agrees). If, on the other hand, you were conceived by the use of assisted human reproduction and provider gametes (sperm cells and eggs), then government will neither create, preserve nor release parentage records to you.
In fact, the federal government is currently working on regulatory changes that would ensure that records are retained for only 10 years, either from the day after the use of the gametes, from the donation date or from the date of embryo use. In other words, the resulting child will be about nine or ten years old when these records of parentage may be destroyed. The changes are part of a larger update to the Assisted Human Reproduction Act.
The government’s new rules were drafted even though Parliament recognized and declared that the interests of people conceived by provider gametes come first. The federal statute stipulates that the health and well-being interests of the children born by provider gametes supersede the interests of the adults. The Assisted Human Reproduction Act states:
2. The Parliament of Canada recognizes and declares that
(a) the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use.
The health and well-being interests clearly include having access to records of parentage. When people are prevented from knowing the identity of their half-siblings, the risk that they will have children together increases. They are also deprived of gaining access to information on their parents’ medical history, including genetic conditions. As the BC Supreme Court noted in Pratten v. British Columbia, they can’t learn about their “culture, religion and other elements that are important to the formation of their identity, and which can be responsible for psychological distress.”
Yet at no point in its discussion of the proposed regulatory changes does Health Canada address the health and well-being interests of people born through the application of assisted human reproduction technologies in having access to records of their identity.
Health Canada appears to place its focus instead on the interests of the “[assisted human reproduction] industry,” which it defines as including “sperm and ova banks, importers and distributors, fertility clinics, lawyers, consultants, surrogates, sperm and ova donors, and health care providers.” The department states clearly that the proposed amendments “would resolve concerns of sperm and ova banks, including those in the United States, that the Regulations could unintentionally compromise the anonymity of donors.” Health Canada does not explain why industry interests should trump the interests of the children born of assisted human reproduction.
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Could it be that the various adult-oriented cabinet directives (requiring analysis of the proposals’ effects on small business, on women and the LGBTQ+ community and on alignment with other regulations) caused Health Canada to forget that Parliament recognized and declared that the children born of assisted human reproductive technologies have interests that must always be considered first?
Perhaps Health Canada quietly fears that if importation of anonymous gametes and embryos were banned, then the supply would unacceptably diminish. Such concern would be countered with evidence from the UK that no permanent decline in supply occurred after it banned anonymity; the numbers of sperm and ova providers actually increased after anonymity was ended.
Health Canada might also argue that the provinces and territories have jurisdiction concerning vital statistics information. Even so, Health Canada must explain why it would actively obstruct the creation and preservation of vital statistics records.
The federal government should ban anonymity of gamete providers and create and preserve records for offspring to access in adulthood. These actions are required by the Assisted Human Reproduction Act’s statutory obligation to give priority to the health and well-being interests of the people whom the application of these technologies aims to bring to life.
This article is based on a paper appearing in an upcoming special issue of Health Law in Canada.
This article is part of the Addressing the Gaps in Canada’s Assisted Reproduction Policy special feature.
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