CFAS Guidelines on Third Party Reproduction

Vanessa Gruben argues that the Canadian Fertility and Andrology Society’s Guidelines on Third Party Reproduction offer important information for patients and the public about third party reproduction.

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The Canadian Fertility and Andrology Society (CFAS) recently published Clinical Practice Guidelines on Third Party Reproduction (Practice Guidelines). Third party reproduction refers to the use of sperm, eggs or embryos from a third party donor(s) or the use of a surrogate to build a family. Third party reproduction allows either individuals or couples to attain a pregnancy where they are unable to do so using their own gametes or uterus. This includes people who are suffering from medical infertility as well as LGBT families and single parents by choice.

The Practice Guidelines address many aspects of third party reproduction including, medical and infectious disease screening of donors, providers and surrogates,  the retention of medical records, psychological counselling, and independent legal counsel. While not legally binding per se, these Practice Guidelines seek to fill in glaring legal gaps and offer greater certainty in clinical practice.

Take, for example, the retention of third party donor medical records. The current law in Ontario requires that medical records be kept for ten years from the date of the last entry in the record and the College of Physicians and Surgeons of Ontario recommends that physicians retain medical records for 15 years. Yet neither the law nor the College recommendations take into account the possibility that a donor conceived person may require access to his or her donor’s medical record well past either of these time lines because of the important information it contains about the donor conceived person’s family medical history. The CFAS Practice Guidelines recommend that medical records “be kept indefinitely for gamete donors and recipients, embryo donors and recipients, and surrogates.”

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The Practice Guidelines are also notable for their breadth – they address many non-medical aspects of third party reproduction. For example, the Practice Guidelines make several recommendations regarding legal counselling. They recommend that all sperm, egg and embryo donors as well as individuals involved in surrogacy, especially where the third party is known to the intended parents, should be offered independent legal counsel prior to treatment. The Practice Guidelines also recommend that, outside Quebec “clinics should receive clearance letters from both lawyers involved confirming that a surrogacy agreement has been completed before treatment commences.” In doing so, the Practice Guidelines seek to protect and promote the legal rights and interests of all parties involved in third party reproduction.

Some may find it puzzling that recommendations regarding legal matters are found in Practice Guidelines intended to assist clinical practice. In my view, this reflects the unfortunate reality that many provinces have not enacted much needed legislation to address the great legal uncertainty surrounding many aspects of third party reproduction, including parentage. Thus, it is not surprising that this interdisciplinary committee, composed of physicians, lawyers and an ethicist, included recommendations about various non-medical aspects of third party reproduction, such as the need for independent legal advice.

Given their importance and breadth, it is laudable that the CFAS has decided to make these Practice Guidelines available to the general public. Whereas the CFAS’ Practice Guidelines were formerly only accessible to CFAS members who pay an annual membership fee and have been endorsed by two CFAS members, all of the Practice Guidelines, including the Third Party Reproduction Practice Guidelines are now available on the public section of the CFAS webpage.

From a patient’s perspective, the Practice Guidelines represent an important source of information. In particular, this document provides information about the care they should expect to receive, the recommended genetic and infectious disease screening, and the steps that should be taken to protect the parties’ legal rights and interests.

From the public’s perspective, the Practice Guidelines make several recommendations that have been, and should continue to be, the subject of public deliberation and critical analysis. For example, currently there are no restrictions as to what terms may be included in surrogacy agreements, and no regulations under the Assisted Human Reproduction Act clarifying the expenses for which a surrogate may be legally reimbursed. In addition, there are many concerns about the treatment of egg donors, including the potential conflict of interest that may arise when the same physician treats both the intended parents and the woman who is donating her eggs.

Given the significant clinical, legal, and ethical issues arising from third party reproduction in Canada, the CFAS will continue to play a key role not only in guiding the profession but also in providing important information to the public. Nevertheless, the federal and provincial legislatures still have much work to do to resolve many of the legal uncertainties that the Practice Guidelines seek to address.

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Vanessa Gruben is an Associate Professor at the University of Ottawa, Faculty of Law. She is a member of the University of Ottawa’s Centre for Health Law, Policy and Ethics @vanessagruben