Prohibitions related to Purchasing Reproductive Material and Purchasing or Selling In Vitro Embryos

Background

In 1989, the Government of Canada asked the Royal Commission on New Reproductive Technologies to consider the latest medical developments in infertility treatment (e.g., in vitro fertilization). Based on the ethical, social and economic issues linked to infertility treatment, policies and safeguards were suggested and developed. In addition to considering the recommendations of the Commission's final reportFootnote 1, the Government worked with health professionals, researchers, ethicists and individuals using or thinking about using assisted human reproduction to build their families to develop its approach to infertility treatment. The result was the Assisted Human Reproduction Act (AHR Act) which became law in March 2004.

The law respects Canadians' values, and sets out broad principles to guide how Health Canada applies and enforces the Act and its regulations. Health Canada also encourages health professionals, researchers and other interested groups to follow the principles (stated below) while carrying out AHR based activities.

Principles

  • In the use of AHR technologies, children's health and well-being must come first;
  • Using appropriate measures will help protect the health, safety, dignity and rights of people affected by the use of AHR technologies;
  • Because women, not men, are more significantly affected by AHR technologies, their health must be protected;
  • Free and informed consent must always be given before these technologies can be used;
  • People who use AHR technologies must not be discriminated against;
  • Commercial trade and abuse of the reproductive capabilities of children, women and men is, for health and ethical reasons, a crime;
  • Preservation and protection of human individuality and diversity must be upheld.

Prohibitions related to trade in human reproductive material and in vitro embryos

Under section 7 of the AHR Act, no person shall:

  • Buy, offer to buy, or advertise that they will buy sperm or ova from a donor or a person acting on behalf of a donor;
  • Buy, offer to buy, or advertise that they will buy an in vitro embryo;
  • Sell, offer for sale, or advertise for sale an in vitro embryo;
  • Buy, offer to buy or advertise that they will buy a human cell or gene from a donor or a person acting on behalf of a donor, with the intention of using the gene or cell to create a human being or of making it available for that purpose.

This means that egg and sperm donors cannot be paid; their donation must be altruistic.

An in vitro embryo (grown in a laboratory) should not be developed to make a profit. For this reason, any commercial transaction involving an in vitro embryo is a crime.

Under the AHR Act, "a donor" of eggs and sperm means the individual from whose body they were obtained.

Also, for the purpose of these prohibitions: eggs, sperm and/or in vitro embryos cannot be bought, sold or exchanged for goods, property or services.

Reason for these prohibitions

The prohibitions are in keeping with the guiding principles in the AHR Act. Exploiting the reproductive capabilities of children, women and men for commercial gain is strictly forbidden for health and ethical reasons. The requirement of altruistic donation in Canada is consistent with Canadian values and laws similar to the law on the transplantation of human organs and tissues.

Sperm and eggs

Buying sperm and eggs (ova) in Canada from a donor for reproductive or any other use is a crime. It is also a crime to offer or advertise to buy sperm and eggs. The law prohibits:

  • Buying sperm or eggs from someone acting on behalf of a donor;
  • The exchange of goods or services (instead of or in addition to money) as a means of buying sperm or eggs, such as reducing the cost of the woman's assisted reproduction treatment in exchange for donated eggs;
  • Compensation to research subjects for the purchase of their sperm or eggs;
  • Offering or advertising that you will buy sperm or eggs from a donor.

This means that a donor cannot be paid in any way (money, gifts, services, etc.) for the donation of their eggs or sperm.

The AHR Act does not prohibit:

  • Buying sperm or eggs from a person other than the donor provided the person is not acting on behalf of the donor;
  • The sale or offer for sale of sperm or eggs.

This means that the AHR Act allows fertility clinics and sperm banks to charge a fee for their services, which may include the storage, transfer and use of donated eggs or sperm.

Under the AHR Act, paying a donor for their sperm or eggs is a crime. However, if a donor has out-of-pocket costs directly related to their donation, they may be repaid. For instance, an egg donor may be repaid for pain medications needed as a result of the donation or for travel to the clinic where the donation and pre-screening takes place. In these situations:

  • The reimbursement of a particular expense must not involve financial or other gain to the donor and normally occurs after receipts for expenditures are provided to the person making the reimbursement;
  • Payment of "anticipated expenses" or an "unaccountable allowance" would be seen as a contravention of the prohibition in the AHR Act;
  • Whether or not a specific expense is directly related to the donation depends on the particular circumstance(s) of the donation.

This means that fertility clinics are not allowed to pay a donor for the donation of their eggs or sperm. However, if a donor has any out-of-pocket costs directly related to their donation, they may be repaid after the fertility clinic receives the receipts for the costs claimed.

Minimum age to be a donor

Section 9 of the AHR Act does not allow any person in Canada to:

  • Obtain sperm or eggs from a donor under 18 years of age, or use any sperm or egg so obtained,
  • Except for the purpose of preserving the sperm or egg or for the purpose of creating a human being that the person reasonably believes will be raised by the donor.
  • This exception applies, for example, in the case of a minor undergoing treatment that may affect his or her reproductive capabilities (e.g. cancer therapy). So, the intent of the person obtaining the sperm or egg from a minor is to preserve it for the minor's own future reproductive use.

In vitro embryos

The AHR Act forbids the buying and selling of in vitro embryos in Canada and this applies:

  • No matter the purpose, recipient or seller of the in vitro embryos. An offer to buy or sell and advertising to buy or sell in vitro embryos are also prohibited;
  • To the exchange of property or services, (instead of or in addition to money), as a means of buying or selling an in vitro embryo.

This means that in vitro embryos may never be bought or sold in exchange for money, property or services.

The AHR Act makes buying and selling in vitro embryos a crime. However, the AHR Act also recognizes the costs involved in the maintenance and transfer of an in vitro embryo and allows for reimbursement of actual expenses. In this situation:

  • The reimbursement of a particular expense must not involve financial or other gain to the person being reimbursed and normally occurs after receipts for expenditures are provided to the person making the reimbursement;
  • Payment of "anticipated expenses" or an "unaccountable allowance" would be seen as a contravention of the prohibition in the AHR Act;
  • Whether or not a specific expense is directly related to the donation depends on the particular circumstance(s) of the donation.

This means that fertility clinics are not allowed to pay a donor for the donation of their in vitro embryos.

Compliance

Any person in Canada who breaks the law under the AHR Act by either buying sperm or eggs or by buying and selling in vitro embryos, is committing a crime. If found guilty, the person could be fined up to $500,000 or jailed for up to ten years, or both.

As with any criminal act, if a person is actively helping or advising another person who has committed an offense under the AHR Act, the person giving the help could be considered an accomplice to the crime. Any such judgment would be based on the particular facts of the situation and the level of knowledge of the person giving the help.

If you need more information on the application of the Act or its regulations, please contact Health Canada in one of the following ways:

By Mail:

Health Canada
Address Locator: 0900C2
Ottawa, Ontario
K1A 0K9

Email: Info@hc-sc.gc.ca
Telephone: (613) 957-2991
Toll Free: 1-866-225-0709
Facsimile: (613) 941-5366
Teletypewriter: 1-800-465-7735 (Service Canada)

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