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Fertility

Ontario's IVF funding plan needs to be inclusionary

As Ontario’s health minister delays announcing details of the province’s IVF funding plan to do more consultations, Toronto fertility lawyer Sara Cohen says she hopes it will be inclusionary, as well as take into account continuing scientific advancements and changing social realities.

“It is really a wonderful thing that the government is looking to fund in-vitro fertilization, but I am concerned that some arbitrary decisions will be made that, from my perspective, may be discriminatory,” she tells AdvocateDaily.com

Cohen, founder of Fertility Law Canada at D2Law LLP, says she was a little surprised to hear about the delay because it has been such a long time coming. 

“There has been quite a bit of work done and the government has definitely heard many viewpoints, including from the medical profession, on how the plan should look,” she says. 

Cohen notes the government first announced plans to fund IVF about 18 months ago and it has been a particularly long wait for people for whom such a program would impact.

Health Minister Eric Hoskins was expected to announce details of Ontario’s IVF plan today but the Globe and Mail is reporting that he has decided to wait a bit longer. He declined to reveal whether the province will accept an expert panel’s recommendations that morbidly obese women and those older than 42 be excluded from funding for IVF, says the article. 

About two per cent of births in Ontario are a result of IVF. Hoskins says funding for the service will be available before the end of this year, says the article.

Cohen says it would be “dangerous” if the province was to draw strict lines in the sand.

“For example, if I am a 45-year-old woman and I am doing IVF using my own ova, maybe it’s true that the chances of it succeeding aren’t very high. But if I am a 45-year-old woman who is using donor ova, my chances may likely be just as successful as someone who is 35 and using their own ova,” she says. 

“Not taking such factors into consideration and drawing a line in the sand seems arbitrary to me and I think it would be discriminatory. It also doesn’t take into account that not all families are built using their own gametes any more — nor does it consider the ongoing technological advances in this area.”

Cohen says such exclusions could result in discrimination complaints or litigation rooted in the same argument. 

“I think that would be bound to happen at some point — I would surprised if it didn’t,” she says.

Cohen says the law may be too blunt a tool to regulate IVF funding with strict and arbitrary restrictions when societal norms are changing all the time and technological norms are evolving. She says that would best be left to the medical experts.

“I would worry that government wouldn’t be able to move fast enough to keep up with the needs and changes,” she says. 

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