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Fertility Law LAWG-512

Ana de Veciana

Fertility Law Project Illustrated Book

Student Convenors: Katie Hammond, Michael Lang & Matt Malone Faculty Supervisor: Robert Leckey McGill Faculty of Law

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“The difficulty of IVF or any fertility issues is the hope and the shattered hope, the dream that it might happen this time and then it doesn’t happen" Brooke Shields.

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Introduction In the recent years, the development of Fertility Law has become really significant for countries. Law has to evolve at the same time as the society, however in the fertility field, the advances in technology move faster than the law. These advances in technology create a challenge for countries. Based on the discussions in class, the aim of this Fertility Law project is to reflect and capture the different topics discussed over this course in an “illustrated book”. As an international exchange student from Spain what really intrigues me are the differences between Canadian and Spanish Law concerning the following topics:   

Right to Terminate. Egg donation, sperm, embryos and surrogacy. The Organ Donation.

In this “illustrated book” we will find two drawings per issue, one for Canada and other for Spain. The intention, of that, is to approach with both drawings the current situation that fertility law, in each country, faces and compare both legislations. Furthermore, since I consider almost impossible to resume each States laws in just one picture, at the bottom of every page we will find the comparison between the Canadian Law and the Spanish Law concerning the topic.

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1. Right to Terminate CANADA

With this drawing, I want to represent the right to end the pregnancy in Canada. We can observe the head and belly of the woman, both of the same colour. This means that the woman has the power to make decisions about her own body. Still, on the sides, we see different opinions regarding this right. On the left, we see phrases of pro-life groups in Canada that they use in demonstrations. Conversely, at right, the response of the groups that defend the right to abortion.

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Canada is one of the few countries in the world that has decriminalized abortion. In Canada, there are no legislative or judicial restrictions on abortion. Abortion is illegal in South America, African and Muslim countries and traditional countries influenced by Catholicism. And the countries that do allow legal abortions permit it only up to a certain time or make it subject to circumstances such as risk to the woman.1 The practice of abortion was illegal in Canada until the approval of the Criminal Law Amendment Act. Thanks to the case of Regina v. Morgentler, the Supreme Court of Canada revoked the 1968 law because it violated Section 7 of the Charter of Rights and Freedoms by violating a woman's right to privacy, freedom and personal security “Forcing a woman, through the threat of criminal sanction to carry a fetus to term unless it meets certain criteria related to their own priorities and aspirations, is an interference with the body of a woman and therefore a violation of the safety of the person.”2

1 Alister Browne and Bill Sullivan, Abortion in Canada (2005) 14, 287–291 2 R. v. Morgentaler, [1988] 1 S.C.R. 30. 5


SPAIN

With this drawing, I want to represent the hardening of the Spanish law as the weeks pass throughout the pregnancy surrounding the Right of Abortion. As more weeks go by, more requirements you have to fulfil to be able to terminate the pregnancy.

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The voluntary interruption of pregnancy in Spain or induced abortion in Spain is regulated in Title II of the Organic Law 2/2010 de salud sexual y reproductiva y de la interrupción voluntaria del embarazo.3 This law decriminalizes the practice of voluntary interruption of pregnancy during the first 14 weeks of pregnancy - during this time; the woman can make a free and informed decision about the termination of her pregnancy. There will be no third party intervention in the decisions-. Article 15 states that the period of a possibility for voluntary interruption of pregnancy increases until week 22 in cases of "serious risks to the life or health of the mother or the fetus". After the 22nd week, pregnancy can only be interrupted in two cases: that "abnormalities in the fetus incompatible with life are detected" or that "an extremely serious and incurable disease is detected in the fetus at the time of diagnosis and so confirm a clinical committee”.

3 Ley Orgánica 2/2010, De Salud Sexual Y Reproductiva Y De La Interrupción Voluntaria Del Embarazo, Jefatura del Estado ( 2010) BOE-A-2010-3514

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2. Egg, sperm, embryos donations and surrogacy CANADA

This drawing represents the relationship that exists between the intended parents and the surrogate. Although in Canada surrogacy is legal, the contracts between the two parties sometimes are not clear. Contracts must be a compromise and have to establish many agreements as for miscarriage, medical tests, where the birth will take place, the assumption of risks, abstinence of sex, etc. Sometimes surrogates are vulnerable in the negotiation because there are many things to take into account before having the baby, many of the surrogates might not know in what are they getting to. Because surrogacy is not only caring a baby, the contract can alter her life in many ways as they can state for example what they should eat.

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The purchase of gametes is banned (art. 7 AHR Act) and as well embryos must not be purchased or sold4. And you may not pay a donor to encourage a donation. But it is legal for a third party to sell eggs and sperm, that way banks and clinics charge a fee for storage, use, or transfer the eggs or sperms.5 Surrogacy in Canada is legal, although restricted. The Assisted Human Reproduction Act allows, only, altruistic surrogacy, therefore “no person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid”. In Canada the donation of gametes and embryos can be anonymous – the identity is not known- or donors can choose to allow their identity to be known at some point.6 In class, we talked about the right to remain anonymous, but eggs and sperm banks keep information reliable of their donors, as the blood type or infections. These donor profiles contain information regarding de donor’s health and family history.

SPAIN 4 Bill S.C. 2004, c. 2, Assisted Human Reproduction Act, 37th Parliament, Bill C-6 (2004) 5 LGTB Parenting Network, Sperm, Egg and Embryo Donation in Canada,(2015) 6 Inbid. 9


Spain is pioneer in fertility treatments; in this drawing we can observe the process of the insemination in vitro. The green arrow represents the demand Spanish clinics have, it is believed that this success is because of the competitive prices and the quality of the services offered by the clinics. However it surprises me that Spain is very advanced when it comes to the legislation of this treatment and not with surrogacy.

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The article 5 of 14/ 2006 Law about “ Técnicas de Reproducción Asistida” states the donation of gametes and embryos as a free, formal and confidential contract between the company and the centre, which must be ratified in writing, taking into account the donors of the fines and consequences of the act. 7 Donors must be in full possession of their abilities and enjoy good psychophysical health. Currently, Spain is one of the countries in Europe that has done more treatments of fertility. Spain receives patients from all over Europe; the reason behind this is that counties like United Kingdom, France, Italy or Germany have more legal restrictions when it comes to egg donation. For example in UK, donations are not anonymous which could explain why prospective donors are more reticent because they have to accept a responsibility that they do not want. Focussing on surrogacy, article 10 prohibits surrogacy, with or without price, in the care of a woman who renounces maternal filiation in favour of the contractor or a third. And specifies that the children born from a surrogacy will be of the mother who gave birth to them.8 Recently Portugal has enacted a surrogacy law, this new legislation allows foreigners to access the procedure. It is believed that there would be the most attractive option for Europeans who desire to have a child. Currently, the Spanish government is studying how to regulate surrogacy; one of the main focuses of this future regulation is going to ensure that surrogacy is a free and altruistic relationship and does not become a business.

7 Ley 14/2006, Sobre Técnicas De Reproducción Humana Asistida, Jefatura del Estado (2015) BOE-A-2006-9292 8 Inbid. 11


3. Organ Donation concerning the prohibition of its payment.

CANADA

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The payment for organ donation in Canada it is considered a system based on altruism, the law ensures the exchange of organs to become a market. The Safety of Human Cells, Tissues and Organs for Transplantation Regulations standardize in Canada the screening and testing of potential donors. All provincial and territories laws, regarding donations, base the system on altruism and they ban the buying and selling of organs. 9 The prohibition on purchasing organs becomes a justification for banning the eggs, sperm and embryos to be purchased. However on March 27, there was a press conference in Ottawa, a whole range of professionals in the field such as doctors, lawyers and agencies are willing to decriminalize the compensation for surrogate services, or the purchase of eggs, sperm and embryos. Anthony Housefather and Sara R. Cohen argue that the criminalization should not exist, because in Canada there is a lack of donors – the 95 percent of sperm donors used in Canada are from the US. Also, there is no incentive for people to become donors and at the same time argue that no one should be punished for willing to become a parent. Affirm “adults in Canada are able to make rational choices as to what to do with their own bodies and do not need criminal prohibitions to protect them.” 10 Housefather argued that organs and fertility material are very different, we need organs to live, whereas not eggs.

9 Timothy Caufield, Eric Nelson, Brice Goldfeldt and Scott Klarenbach, Incentives and organ donation: what’s (really) legal in Canada? (2014) online: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4349723/ 10 Anthony Housefather and Sara R. Cohen, Our fertility laws can criminalize people  trying to start a family. It's time for an overhaul ( 2018) online:  http://nationalpost.com/opinion/our­fertility­laws­can­criminalize­people­trying­to­ start­a­family­its­time­for­an­overhaul

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SPAIN

This drawing represents an embryo, egg and sperm. In Spain as well as in Canada, the donation has to be altruistic and it is illegal to offer money or other type of compensation for them. Consequently, we can say that they receive the same protection as the organs, as they cannot be purchased. I think the intention is to avoid creating a market in the woman's body.

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As in Canada, in Spain, it is banned the purchase of organs and eggs, embryos and sperm. The Art 2, Law 30 of 1979 / art 7.1Real Decree 2070/1999 state “In no case would there be financial compensation for the donor, nor will the recipient be required to pay any price for the organ transplanted. The promotion of the donation or obtaining of organs or human tissues always know in a general way and pointing his voluntary, altruistic and disinterested character. It does not deserve to perceive gratification for the donation of human organs by the donor, or in any other natural or legal person”. 11 Moreover, the European Union in its Art 13 Directive 2010/45 / EU / Art 12 Directive 2004/23 / EC states “Member States shall ensure that organ donations from deceased or living donors are voluntary and not paid, will endeavour to guarantee voluntary donations and unpaid cells and tissues as well as ensuring that the obtaining tissues and cells as such is done without profit”.12

11 Real Decreto 2070/1999, Por el que se regulan las actividades de obtención y utilización clínica de órganos humanos y la coordinación territorial en materia de donación y trasplante de órganos y tejidos, Ministerio de la Presidencia (2000) BOE-A2000-79 12 Directive 2004/23/e , On setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, The European Parliament And Of The Council (2004) L 102/48

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Conclusion I decided to take this course because I have always been very interested in the topics that concern the Fertility Law. The opportunity of doing this “ Illustrated Book” led me to compare both legislation and illustrate by drawings what are the differences between both countries. One of the major differences we can see is towards the termination of pregnancy, I believe Spain is more traditional in many ways, perhaps for the importance that religion has in Spain and also because the actual government is of rights, which means that are more traditional. In 2014, Minister Gallardón promoted the modification of the Abortion Law in order to be harsher, the opposition criticised this modification, since the change would ban the right for a woman to terminate their pregnancy during the first 14 weeks of pregnancy. Finally, the government withdrew the proposal. Concerning this issue, Canada is more modern, abortion rights are ensured and are based on the “right of liberty” of the person, which means that a woman has the right to terminate her pregnancy. In addition, surrogacy was always a topic that concerned me. In Canada although surrogacy it is permitted, I could see how difficult is sometimes to regulate this contract, as for example to which extend the intended parents can decide what the surrogate can do or cannot do. I believe that if the Spanish government in the future wants to allow surrogacy will have to meet with professionals on the field, lawyers and doctors as well as intended parents and surrogates to create a law that protects both parties. From my point of view, the right to terminate and surrogacy should not be banned but regulated the best possible. To conclude, I think I have learnt a lot in this seminar, the technological advances are giving hope to many couples of any sexual orientation or even single people to become a family. These technologies assist couples to get pregnant or to have a child using AI or IVF treatments, through surrogacy among others means. I am interested in how Fertility Law will evolve in the following years.

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