Criminalizing egg and sperm donation not the answer: Cohen

By Mia Clarke, Associate Editor

Canada’s fertility laws need to be changed in order to protect donors and the children they help create, Toronto fertility lawyer Sara Cohen tells CBC Radio.

“In my opinion, the entire purpose of the legislation was to protect children born through third-party reproduction and the donors themselves,” says Cohen, founder of Fertility Law Canada at D2Law LLP.

“By criminalizing it, what we’ve done is driven a lot of things underground … The other and perhaps the most important thing we’ve done is we’ve really moved everything outside of Canada.”

She says Canada has only one national sperm bank, compared to approximately 20 before the implementation of the current law in 2004.

Without the ability to pay, Cohen says Canada’s sole sperm bank can only attract between 20 and 40 donors per year. She says about 95 per cent of Canada’s supply comes from the United States where it’s paid for anyway.

"If we can ensure the donations are in Canada, we can create a mandatory donor registry that would keep information relevant to the donor-conceived kids," she tells AdvocateDaily.com.

In Canada, says Cohen, “It is punishable by up to 10 years in jail and/or $500,000 if you compensate a surrogate for her services or an egg or sperm donor for the sperm or ova.”

By making compensation the main issue, she says we’re losing out on the ability to regulate the industry at home and control who the donors are.

“What we’re losing is so much worse … You lose the ability to protect the kids,” Cohen says.

She says she understands why so many people believe that sperm and egg “ought not to be commodified.”

“I just don’t think criminalization is the right model,” says Cohen. “If you have concerns about things like coercion, it’s much better to instead regulate the way we treat these donors — make sure she has access to psychological counselling and support … If you’re worried about commodifying the entire experience, then put a maximum — say it’s $150 for your sperm.”

Cohen helped draft a private member’s bill, introduced in May, that would decriminalize compensation.

Bill C-404 aims to eliminate criminal charges for those who pay for and receive donated sperm and eggs, as well as surrogacy services.

Cohen says the bill would then give provinces the power to regulate donation, as they do in other health-related matters.

The government recently proposed new regulations that would see surrogates reimbursed for more expenses. Although she would like to see surrogates paid for their services, Cohen tells Global News the proposed regulations are a step in the wrong direction.

"It is absolutely impossible to list very specifically what expenses would look like for a single individual," she says. "They're all going to be very different."

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