HEAL Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Health

EVIDENCE

CONTENTS

Wednesday, June 12, 2002

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1535

The Chair (Ms. Bonnie Brown (Oakville, Lib.))

Dr. Clifford Librach (Fertility Specialist, Department of Obstetrics and Gynecology, Sunnybrook and Women's College Hospital Health Sciences Centre)

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1540

¹

1545

¹

1550

The Chair

Mr. Rob Merrifield (Yellowhead, Canadian Alliance)

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

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1555

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

Mr. Rob Merrifield

Dr. Clifford Librach

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

The Chair

Ms. Hedy Fry

Dr. Clifford Librach

Ms. Hedy Fry

Dr. Clifford Librach

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1600

Ms. Hedy Fry

The Chair

Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance)

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

Mr. James Lunney

Dr. Clifford Librach

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1605

The Chair

Ms. Phyllis Creighton (Member, Health Canada Advisory Committee on Reproductive and Genetic Technologies)

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1610

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1615

The Chair

Ms. Jean Haase (Social Worker, Infertility Clinic, London Health Sciences Centre)

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1620

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1625

The Chair

Ms. Shirley Pratten (Founding Member, New Reproductive Alternatives Society)

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1630

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1635

The Chair

Ms. Kathleen Priestman (Research Analyst, Public Interest Advocacy Centre)

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1640

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1645

The Chair

Mrs. Juliet Guichon (Senior Researcher, Office of Medical Bioethics, Faculty of Medicine, University of Calgary)

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1650

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1655

The Chair

Ms. Heather Brooks (Services Coordinator, Xytex Canada Inc.)

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1700

»

1705

The Chair

Mr. Réal Ménard

»

1710

Ms. Shirley Pratten

Mr. Réal Ménard

Ms. Shirley Pratten

The Chair

Ms. Juliet Guichon

Mr. Réal Ménard

Ms. Juliet Guichon

The Chair

Mr. Szabo

Mr. Jean Haase

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1715

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Jean Haase

Mr. Paul Szabo

Ms. Heather Brooks

Mr. Paul Szabo

Ms. Heather Brooks

Mr. Paul Szabo

Ms. Heather Brooks

Mr. Paul Szabo

Ms. Heather Brooks

Mr. Paul Szabo

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1720

Ms. Heather Brooks

Mr. Paul Szabo

Ms. Heather Brooks

Mr. Paul Szabo

Ms. Shirley Pratten

The Chair

Ms. Yolande Thibeault (Saint-Lambert, Lib.)

Ms. Yolande Thibeault

Ms. Yolande Thibeault

Ms. Phyllis Creighton

The Chair

Mr. James Lunney

Shirley Pratten

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1725

Mr. James Lunney

Ms. Heather Brooks

Mr. James Lunney

Ms. Heather Brooks

Mr. James Lunney

Ms. Heather Brooks

Mr. James Lunney

The Chair

Ms. Heather Brooks

The Chair

Ms. Heather Brooks

The Chair

Ms. Heather Brooks

Mr. James Lunney

Ms. Heather Brooks

Mr. James Lunney

The Chair

Mr. James Lunney

The Chair

Mr. James Lunney

Ms. Phyllis Creighton

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1730

The Chair

Ms. Hedy Fry

The Chair

Ms. Hedy Fry

»

1735

Ms. Phyllis Creighton

Ms. Hedy Fry

Ms. Phyllis Creighton

Ms. Hedy Fry

Ms. Phyllis Creighton

Ms. Hedy Fry

Ms. Phyllis Creighton

The Chair

Ms. Phyllis Creighton

Ms. Hedy Fry

Ms. Phyllis Creighton

The Chair

Ms. Shirley Pratten

Ms. Hedy Fry

Ms. Shirley Pratten

»

1740

Ms. Hedy Fry

Ms. Shirley Pratten

Ms. Hedy Fry

The Chair

Ms. Hedy Fry

The Chair

Ms. Hedy Fry

Mr. James Lunney

The Chair

Ms. Hedy Fry

Ms. Shirley Pratten

Ms. Hedy Fry

Ms. Shirley Pratten

Ms. Hedy Fry

Ms. Shirley Pratten

Ms. Hedy Fry

The Chair

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CANADA

Standing Committee on Health

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NUMBER 089

l

1st SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, June 12, 2002

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Ms. Bonnie Brown (Oakville, Lib.)): Good afternoon, ladies and gentlemen. It's my pleasure to welcome you to this meeting of the Standing Committee on Health.

    We have a wonderful panel of witnesses this afternoon. However, one of the witnesses, Dr. Librach, has a slight problem in that he has to leave. Our usual method is to hear from all the witnesses, and then the members ask questions, directing them to whomsoever. But I will let Dr. Librach speak now, and then I will allow short questions to him.

    Dr. Librach, would you like to begin.

    Dr. Clifford Librach (Fertility Specialist, Department of Obstetrics and Gynecology, Sunnybrook and Women's College Hospital Health Sciences Centre): Good afternoon, ladies and gentlemen of the committee, and all the attendees. My name is Dr. Clifford Librach. I'm a fertility specialist who has practised in this field for nearly 15 years. I'm the director of the Sunnybrook and Women's College Hospital fertility centre, and assistant professor at the Department of Obstetrics and Gynecology at the University of Toronto.

    I would like to express my own thoughts on Bill C-56 and your recommendations as a committee. But even more importantly, I will be relating to you the views, of virtually every patient I have ever seen in consultation for egg donation or gestational surrogacy, on the implications that will follow should Bill C-56 and your recommendations become law.

    I've had an egg donation and gestational carrier program for almost the last 10 years. The great majority of our patients, for whom these technologies are their only option for having a genetically related child, do not have a friend or relative who could or would donate or carry for them a pregnancy.

    In our program, virtually all our egg donors are anonymous, and their eggs are split in order to help two couples from a single cycle of egg harvesting. Virtually all our donors come to us through word of mouth, usually via a current donor or self-referral. We have never advertised for donors.

    We see patients from all over Canada who require an egg donor to have children. These women have conditions such as Turner's syndrome, women who are born without eggs; androgen insensitivity syndrome, women who lack eggs or a uterus; premature menopause, which can happen at any age, from a teenager to early forties; post-cancer chemotherapy or radiation, a common one we see, that induces ovarian failure; multiple failed treatments due to an egg defect; genetic problems in their eggs; and so on.

    Our gestational carrier services are provided for women with problems that include post-delivery hysterectomy due to a life-threatening blood loss; hysterectomy due to cancer; absence of the uterus from birth; severe uterine scarring due to surgical damage or tuberculosis; unexplained recurrent miscarriages; patients on medications that can cause serious birth defects; and patients with severe medical conditions for whom pregnancy is a threat to their life.

    I want to tell you about a couple I saw recently. The wife is 25 years old and married one year. At 22 weeks of her pregnancy, her baby tragically died in her womb. After this, she began hemorrhaging, and an emergency hysterectomy was required to save her life. So she has healthy ovaries, her husband has normal sperm, but she has no uterus now. They desperately want to have a family, and she has no sister or someone she can ask to carry a pregnancy for her.

    What if this were you, your wife, or your daughter? The procedures we now have, that are available, allow them to have their own biological child.

    Or how about a woman I saw recently who had ovarian cancer at the age of 18? Her ovaries of course were removed because of the cancer, and she's now married, at 27 years of age. She came to me to have a child through egg donation. She has no sister or someone to donate eggs for her. She gave birth to her twins one week ago through egg donation. The donor was compensated $1,500 and put this money away for her own child's education.

    Our egg donors receive agreed-upon compensation that we feel is appropriate, fair, and reasonable in an amount no more than $5,000. Since the donor's eggs are used for two couples, each couple contributes 50% of that compensation. In the last 10 years, we've had only one or two anonymous donors who have donated for no compensation.

    In the case of gestational carriers, they and the biological parents arrange their compensation privately through their lawyers via mutually agreed-upon contracts that protect all parties involved.

    I am proud to say, using these arrangements, I've helped hundreds of Canadian couples to become parents over the last 10 years. I have never, ever had a couple object to the donor or the surrogate carrier receiving this type of compensation to help them have a child.

     They certainly cannot make a living or change their lifestyle with this amount of compensation, and the amount that gestational carriers generally see is equivalent to less than minimum wage over the nine months of their pregnancy.

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    My patients are devastated and enraged that the proposed legislation will prevent them from being able to have children through this currently available technology. If reasonable compensation is not allowed, there will be no donors or carriers willing to do this. “Receiptable expenses” is not reasonable compensation for people who go through this to be donors or carriers, and the donor carrier pool will become non-existent. Furthermore, without compensation, lawyers will not be able to draw up contracts between carriers and parents, leaving all parties much more vulnerable.

    Desperate couples will not be stopped by this legislation. I know that if it were my wife who required an egg donor or a carrier, we'd go somewhere where these services were available. If Bill C-56 passes as tabled, we could not receive this care in Canada legally. If the proposed legislation passes, there are only two options for these couples who have been dealt a bad hand by nature and who desperately want to have a child: to go to the United States and to pay three to four times as much or more, as much as $40,000 U.S. to $80,000 U.S.; or to go underground and become criminals.

    Passing Bill C-56 in its present form would make this treatment available to only very rich Canadians who can afford to go to the United States. As Canadians we are proud that we can provide universal and egalitarian health care services to all Canadians. With the passing of Bill C-56, it is certain that a two-tiered system would result.

    Poorer patients of mine who could not afford to go to the U.S. are already talking about ways they could circumvent this law. How, for example, would anyone know if a couple brought a “friend” to a fertility specialist in order to donate eggs or carry a baby for them, and then paid them under the table? Alternatively, they could give so-called “birthday presents” to the family members of the donor or carrier. In effect, the current draft of Bill C-56 will promote deal-making and will turn normally law-abiding Canadians into criminals, simply because they are desperate to have a child that is biologically related to them.

    Are we really going to subject these people to huge fines or put them in jail? Where's the justice, the morality, or the dignity in all of this, as mentioned in the preamble to the bill? These are qualities we Canadians pride ourselves in having. If Bill C-56 passes as proposed, or with your recommendations, proper screening and evaluation of donors and carriers would be circumvented, thus failing to protect all the parties involved.

    The answer, therefore, lies not in outlawing compensation for donor and carrier services but in properly regulating them such that all of this will be above-board, not under the table. Thus we can ensure that donors are properly screened and proper guidelines are in place.

    All over the U.S., reputable clinics vetted by well-respected university ethics committees, such as those at Harvard, Stanford, Yale, and Princeton, are helping couples have children by anonymous egg or sperm donation, or through gestational carriers, every day. Other countries such as New Zealand and Israel have public policies that legally recognize surrogacy and egg donation, and allow for fair compensation.

    Here in Canada, the program I run has been helping couples for over ten years. Many other clinics are currently offering these services as well. It is already a standard practice here in Canada. Thousands of couples across this country now have children that they otherwise would not have been able to have.

    Ladies and gentlemen, you need to clearly differentiate between these current treatments that are going on right now and many of the other technologies covered in this bill.

    Some argue that we don't pay blood donors. Approximately 40% of the blood donated in this country is obtained from the U.S., and those U.S. donors are paid. Since we do not have enough blood for our needs, would we deny Canadians who need lifesaving blood from getting it because these donors are paid?

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    Regarding donor anonymity, I am pleased to see that the most recent draft of this bill allows those who donate their ova or sperm to protect their right to remain anonymous if they so choose. All of those who donate eggs in our program are asked if they prefer to remain anonymous or are open to contact after the child reaches the age of 18. Approximately 50% of donors choose each option.

    I am certain that if we do not allow anonymity for sperm and egg donors, the pool of donors would be dramatically reduced. All donors are screened extensively and accepted only if there are no rejection criteria in their medical and psychosocial history. The prospective parents are given a full, though non-identifying, medical and social profile on the donor and their extended family.

    In conclusion, I would like to propose that Bill C-56 be modified such that the proposed regulatory body devises specific rules for both the screening and appropriate compensation of donors and carriers. Accreditation and licensing rules by that body can ensure that these are followed by the clinics. The regulatory body, which would meet regularly, could modify these rules over time with changes in societal values and as new research data is brought to light.

    I feel it is essential that one or more parents who have had a child through egg donation or surrogacy be on this committee, as it is only they who really know what it is like to be in this situation and who have experienced this method of creating the family.

    In closing, it is of utmost importance that you understand why I am appearing before you here today and why I'm fighting so hard for well-regulated egg donor and surrogacy services that allow fair compensation for the wonderful people who donate their eggs or carry a child for someone else. I'm here to plead on behalf of those Canadians who really do not have a voice. They are so private about doing this they do not speak up in public. I see them in my practice daily. Through no fault of their own they are unable to have children.

    It is not a financial issue for me. The donor and surrogacy treatments that I provide perform a small but very rewarding part of my practice. Banning compensation for such services and the consequent elimination of the donor and surrogate pool will affect neither my practice nor my income. I already have a one-year waiting list of patients who want to see me for many other fertility services not affected by this bill.

    Bill C-56 and your recommendations will in effect deny many Canadians the fundamental human right and freedom of choice to have a biologically related child, and will prevent thousands of Canadian couples from knowing the extraordinary joy and wonder of having a child. I therefore urge you, ladies and gentlemen of this committee, to give Bill C-56 and your recommendations much further consideration and discussion regarding what I have proposed here today before this bill becomes law.

    Thank you very much.

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    The Chair: Thank you, Dr. Librach.

    Mr. Merrifield.

    Mr. Rob Merrifield (Yellowhead, Canadian Alliance): I'd like to thank you for coming in and giving us a little more information with regard to surrogacy. It's something we've wrestled with as a committee over the last year. I have heard witnesses on this before, and every bit more of discussion we get on it the better.

    My question is twofold. You've brought up the issue of dollars. You're saying the bill is flawed in that we don't allow for the paying of donors or surrogacy, but have you had altruistic surrogacy as part of your practice at all?

    Dr. Clifford Librach: If someone were doing that, it would cost them money, basically. They'd be off work. They would have child care responsibilities--

    Mr. Rob Merrifield: But it's not happening, though.

    Dr. Clifford Librach: Only when it's a relative of the person, such as a sister or something.

    Mr. Rob Merrifield: And what's the most that you'd--

    Dr. Clifford Librach: I have never had altruistic surrogacy from a non-related surrogate.

    Mr. Rob Merrifield: And what's the most that would be paid for a surrogacy fee?

    Dr. Clifford Librach: Generally speaking, it's approximately $15,000 to $20,000 Canadian; that's basically what I'm hearing from the patients. I am not involved in the actual contracts that are signed, but that's approximately what the current amounts seem to be in Canada. In the U.S. it's very different.

    Mr. Rob Merrifield: That's negotiated between the surrogate and the client.

    Dr. Clifford Librach: Correct.

    Mr. Rob Merrifield: So it's really out of your hands.

    Dr. Clifford Librach: Yes. And my feeling is that the regulatory body should regulate how much is reasonable. What amount is reasonable to compensate them for what they are doing--going through a pregnancy for nine months, carrying that baby, giving birth, child care, time off work, and so on? So it shouldn't be an open market. I think it should be regulated.

    Mr. Rob Merrifield: But it is supply and demand right now?

    Dr. Clifford Librach: At the present time there's no law to regulate it.

    Mr. Rob Merrifield: As well, you're saying that 50-50 are prepared to give anonymous....

    Dr. Clifford Librach: With egg donation, 50% of our donors say that they are open to being contacted by the child after the child is 18. This, of course, is if the child were told. The parents are going to make the decision--we can't influence that--of whether that child will be told that they're from an egg donor. The person giving birth to the baby could, theoretically, be totally anonymous. There could be a secret or something not told.

    But if the child were told, which seems to be about 40% of the time, 50% of the egg donors are willing to be contacted and 50% are not.

    Sperm donation is very different. I think that one of your panelists will address this. In sperm donation, I think virtually none of the donors are willing to be contacted, so that's going to be a much different situation.

    Mr. Rob Merrifield: Is it perhaps partly because of fear of legal responsibility? Is that a consideration?

    Dr. Clifford Librach: I think that's a big consideration.

    Mr. Rob Merrifield: Is it the consideration?

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    Dr. Clifford Librach: It's also the feeling that, you know, this isn't my child. I'm not married to the spouse who has the child. I'm not involved with the pregnancy, or involved in any way with the child's life.

    So it's the feeling that they would rather have those parents take--

    Mr. Rob Merrifield: But this would relate to the legal responsibility, and nothing other than that. The fact that a child would know who that parent was, because of health or social factors, really relates back to the legal issue, does it not?

    Dr. Clifford Librach: We screen donors prior to donation, to rule out any donors who would have any health, genetic, or psychosocial problems that may affect that child in their lifetime. We go through an entire history in the family. We will not take a donor where there is any concern in that regard.

    Now, you can have two healthy people who have a child who has a medical problem. That just happens by chance.

    Mr. Rob Merrifield: I'm just trying to get this right. On the male side, it's more the legal responsibility than the dollars? Or is it the economic side of it as well?

    Dr. Clifford Librach: I'm not sure I understand your question.

    Mr. Rob Merrifield: If a sperm donor were not compensated.... Actually, according to the bill, they can be compensated. But if they were not paid, would that detract, or is it the legal responsibility? Which is the bigger player, or is it a combination of both?

    Dr. Clifford Librach: Oh, I see; the payment versus the legal responsibility.

    Mr. Rob Merrifield: That's right.

    Dr. Clifford Librach: I think it's both, I really do. If you eliminate the payment, then you won't have donors. If you eliminate their right to be anonymous, then you will also lose all of the donors.

    So I think it's both of them. I don't think it's one more than the other.

    The Chair: Dr. Fry.

    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much.

    The Chair: Members, I was hoping just to have a couple, so I thought we'd--

    Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): No, the rules are the rules. Each member has the right--

    The Chair: Okay.

    Dr. Fry, and then Mr. Ménard.

    Ms. Hedy Fry: You make some very interesting points. From a practical point of view, in fact, they are interesting and very challenging for us. One the one hand, there is the question that everyone is struggling with: if you commercialize this and pay for it, will you suddenly find that a whole lot of young people will suddenly decide to go and donate sperm and eggs willy-nilly, just for the money? As we all know, when they are students, a lot of young people need money. On the other hand, if you didn't give any kind of payment, or if you didn't allow for anonymity, what you're really doing is asking people to be altruistic. Then a whole bunch of people are going to say, “Well, I don't know that I want to do these favours.” So you will diminish your pool of donors. We discussed this the other day.

    I understand all of this, and I understand your point about compensating for surrogacy. I think we have in the bill already--the regulations may change some of these things--the concept of compensation for real costs, and for real needs during a pregnancy.

    However, there is a question here when you start talking about pay. What about the infertile couple who is not wealthy enough to find that kind of money? Do we then set aside two classes of infertile couples--those who can afford to pay the costs of donation of an egg, or of sperm and--

    Dr. Clifford Librach: In Canada, we don't pay for in vitro fertilization, do we? So we've set that up already, that's there. The country has decided we are not going to pay for in vitro fertilization--or the provinces, probably, I should say.

    Ms. Hedy Fry: I haven't finished. And not all the provinces do it, by the way, so we don't have an equal system around the country.

    I think that is a question we have to consider if we want to consider the kind of values that Canadians have attached to equality of access, regardless of ability to pay. That's the first one.

    The second question is, basically, what do you set up when you start commercializing? Are we going to immediately find there are lots of people who are going to sell just because they need to? There's pressure. We've heard about young women in university who have been pressured to do this simply to make enough money so they can finish their university.

    Those are the things that concern me from an ethical point of view.

    The final piece is that in organ donation we don't pay for organs, either, and we do have a problem of organ donation. So we have to find, perhaps, a different way, a Canadian way of working around this problem if all that you're concerned about is donor sources and whether they will dry up or not--excuse the bad pun.

    These are my questions, because I am concerned about some of the ethics of this.

    Dr. Clifford Librach: My answer, of course, is that we don't pay for IVF at all in Canada, except for one province that pays if the tubes are blocked. I think that's questionable, too.

    So it's already there. We have two-tiered in that way. Generally speaking, though, we're not talking about huge amounts of money. In most cases, they are amounts of money that people generally can afford. We have ways; we have donations that people can access if they can't afford to do it. Generally, in many ways we are able to get people through in vitro fertilization if they can't afford to do it. We have charities set up and so on, so we have that.

    I think that's a wonderful way in which we can help these people, too. We can set up charitable organizations. In fact, we have a charitable event happening within the next year for just this purpose. So that's a way we can allow equal access to this.

    I don't like the word “commercialization”. I think this is a compensation for what the person is doing. If it really were the money, we would have people knocking down our doors to be serviced, and I can assure you, we have trouble finding people who really are willing to do this. It's hard to find people who are willing to carry a baby for someone else. It's not something that people will do willy-nilly. They think carefully about it. We screen them. We really want to know that they want to do this to help people in difficulty have children. All of our donors and carriers have children of their own. They know what it's like to have a child and they know what it might be like not to be able to have a child.

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    Ms. Hedy Fry: I'm sorry, Dr. Librach, I'm not talking about surrogacy, because I think we've dealt with that in the bill. We're looking at compensation in surrogacy.

    I want to know whether you're saying that egg and sperm donors should also be compensated. Is that what you're saying?

    Dr. Clifford Librach: Absolutely.

    Ms. Hedy Fry: And that is the place where I have a little bit of a question to ask about the ethics and the ability for other people to have that kind of system, given that it isn't paid for at the moment in many provinces.

    The Chair: Thank you.

    Mr. Ménard has passed, so we'll go to Mr. Lunney.

    You'll be the last questioner, because I have to save enough time for all the other witnesses.

    Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance): Sure.

     Thanks, Dr. Librach, for your presentation and for the description of your service assisting people in having children.

    I want to ask, how many years have you been providing these services, Dr. Librach?

    Dr. Clifford Librach: About 15 years.

    Mr. James Lunney: In the normal course of your work, would you follow through to the point of delivery of the child, or is that passed on to other help?

    Dr. Clifford Librach: Before having my own children, about two years ago, I was delivering babies. But since that time, because of wanting to spend more time with my own children, I haven't been delivering babies myself, not any more.

    Mr. James Lunney: But in the course of your involvement in assisted reproduction, you followed through to the birth of the child up until two or three years ago. Is that right?

    Dr. Clifford Librach: Up until two or three years ago.

    Mr. James Lunney: Other than prenatal examinations or checks, would you have any follow-up with those children as they grew?

    Dr. Clifford Librach: Yes, we do have follow-up with the children, and we are involved in various studies trying to look at what happens over the next years. Egg donation has been around for about 12 or 13 years, so the oldest child in the world from egg donation is about 13 years old right now. We don't have data that extends beyond that time.

    Mr. James Lunney: So you don't have a database of interviews with the children to see how, perhaps, they feel about your choices.

    Dr. Clifford Librach: Well, that's part of what we're doing. We have research projects going on right now, looking at that type of thing. We're trying to get grants to do that. It would be good if the government could grant us money to help us do that, because it costs a lot of money to follow up these people.

    Mr. James Lunney: Yes, I think it's interesting--

    Dr. Clifford Librach: We have their names, we have the information. I'm actually presenting at the next Canadian Fertility Association...regarding the issue of follow-up of the children from this particular process.

    Mr. James Lunney: I think we have a classic example here of the different perspectives of those who are involved in reproductive assistance at the beginning of the program and those who are involved with the children much later on. It's a pity you won't be staying a little later to hear from Mrs. Pratten and from some of the other witnesses about the effect on the children who have been through this, much further down the line, and their concerns.

    One of the fundamental principles in the bill that the committee laid down here is that the health and the well-being of the children born through the application of the technology must be given priority in the decisions affecting their use.

    If I may make the observation, you're remarkably certain about what will happen if the amendments you're requesting are not made. You are very certain, and perhaps prescient, about no donors or carriers being willing.

    I think you did suggest that you'd had one or two anonymous donors.

    Dr. Clifford Librach: In ten years.

    Mr. James Lunney: Yes, but you're remarkably certain that if these changes aren't made, there will be no donors or carriers willing, and furthermore, lawyers will not be able to draw up contracts; desperate couples will not be stopped by the legislation.

    You're also quite certain they will be going to the United States to pay so much; they will be going underground. You even go on to describe how they might proceed with that: “Thousands of couples across the country would otherwise not have been able....”

    I think it's interesting that you're so certain about what will happen. I wonder if you've taken into consideration that there's a lot of uncertainty because the rules haven't been laid down; and that in fact once the rules are laid down, Canadians have quite a track record of being remarkably giving and remarkably assisting. Our volunteer history in this country is rather remarkable. Canadians have gone to extraordinary measures to give of themselves to help people when genuine need is there.

    I just wonder if you've taken that into consideration.

    Dr. Clifford Librach: I certainly have, and I've looked at other countries where this was a problem. The egg donation pool in Great Britain, when they banned all compensation for donors, went down dramatically. People were going to the United States and Scandinavia to get care. Therefore, I know that will happen here, because it's what happened in other countries. There is precedent for it.

    Then what they did was reverse and say they'd allow expenses and a small stipend. In Britain now they allow that because of the problem they had with people going all over the world to get this kind of care.

    So I do know, and I know from my patients. I do this every single day. I see these patients and I know what they're telling me. I'm trying to relay that to you. That's why I do know. I feel very certain of it, and that's from my heart. That's what I'm telling you.

º  (1605)  

    The Chair: Thank you, Dr. Lunney.

    Thank you, Dr. Librach. I appreciate very much your coming all this way to give us the wealth of your experience in this subject, but with the constraints of time, I now have to move on. Thanks very much.

    We'll go now to Phyllis Creighton from the Health Canada Advisory Committee on Reproductive and Genetic Technologies.

    Ms. Creighton.

    Ms. Phyllis Creighton (Member, Health Canada Advisory Committee on Reproductive and Genetic Technologies): Thank you very much for asking me back. I'm happy to be with you again, as I was last September.

    I want to tell you that I affirm the establishment of the principle in paragraph 2(b), that:

the health and well-being of children born through the application of these technologies must be given priority in all decisions respecting their use;

I think this is terribly important, and we have to keep this ahead of us. We must never forget that this is the case.

    When I read this I looked at the recommendations you had made in the standing committee's report and measured what you had written against that benchmark, and I found that you respected that principle more than does the draft of the legislation we have before us in this bill. And I'm very concerned about that.

    My basic stance you could find in a very fine report that came out some years ago from the New York State Task Force on Life and the Law on surrogate parenting. This is what they say:

Given the potential risks to the children born of surrogacy, children are best served by policies designed to discourage the practice.

    And that's my assumption. I'm not alone in making that assumption. We've heard a lot about existing practice. I think it's fair to say that I find that the bill has laid out a principle that children must be the priority, but when I read through it, it's like the other interests take precedence. It's as if the tail is wagging the dog, and I'm very worried about that. It seems to me that a practice that exists isn't necessarily one that will stand up to ethical consideration, and because it might be difficult to discourage it, that doesn't mean we should accept it socially or that we should give assistance to it, and this bill does exactly that.

    You asked me to come here and comment on your recommendation 10, which was that the clauses that accept legal, medical, and psychological services, and that allow reimbursement of expenses to a surrogate mother, be eliminated. I believe you were right. I was asked to consider the implications of allowing for expenses to be compensated for, as the bill does, in various places, clause 65 and subclause 12(2).

    So what are the implications of the drafter's failure to include your recommendation? First of all, they would be repeating an error that has been backed off from in the field of adoption. Not very long ago in Nova Scotia you used to be able to offer payment to a mother if you were going to take her child on adoption. A friend of mine in Nova Scotia wrote to me that the opinion they received from their lawyer eight years ago was that anything they could get a receipt for was okay. So they paid for her groceries, her prenatal vitamins, maternity clothes, and new eyeglass prescription. In fact, they were told the only thing she didn't get a receipt from was parking metres or prostitutes.

    So there was carte blanche there, but now you can't do that in Nova Scotia and you can't do it in Ontario, and for very good reason: such payments are an inducement to people to undertake what they might not otherwise do.

    I fail to see that it will be helpful to us to provide any encouragement. I am very concerned about the possibilities we see when we turn to websites. The one that you probably have looked at, surromomsonline.com,shows that the loophole, if you reimburse for expenses, will be used. There is no question it will be used. It will be expanded. You will find reference to two levels of contract, the one that doctors see and the one that's private between the persons who want the child and the surrogate mom; and they chat back and forth about this.

º  (1610)  

    I think double contracts will be one thing. I also think a legal expansion might occur, because there are several instances of courts that have found not unreasonable quite extensive maintenance expenses, once you establish the principle there could be payment for this giving of your body. I find it truly an illustration of my biggest fear.

    Everybody's dehumanized by this. What kind of language is it to call a woman who is a birth mother a “gestational carrier”? A carrier! She is a woman, and whatever they tell her--and they do tell her in surrogate services that she must detach herself from the child, as it's someone else's child, because she's a gestational carrier--it is nonetheless she who will go through the nine months of pregnancy. It is she who will give birth. She is the mother. It is her voice, it is her body movements, it is her heartbeat that the baby, when it is born, knows.

    We know from studying The Primal Womb and from other books--Thomas Verny's books--that bonding of the infant to the mother takes place well before birth, and bonding of a woman to the fetus within her also takes place before birth.

    We're saying none of this matters.

    If we look at implications, it's not very surprising that so many of the women who are expected and coached and taught to think it's a normal thing to do to detach yourself--you're bearing it for someone else, it's a generous act--will experience grief.

    One of the things we know from adoption is that women who, for reasons that come after they conceive the child, and not because they deliberately planned it that way, give up a child, end up in grief and regret and mourning that lasts often for 30 years. So we're talking about instituting support for a process that does that, for a process that has certain social disvalues as well. We don't need to think too far to realize that fragmenting motherhood might well lead to discounting each of the roles of the woman. She's just a carrier.

    There are already enough forces to alienate and depersonalize people. The literature contains stories of children--who were children of the woman who chose to become a surrogate mother--who were devastated when their brother or sister at birth never showed up and was given away. There are stories about those children thinking, “Another time, will it be me?” It doesn't take very much imagination to know that, when money has passed for the obtaining of a child, there may well come a moment when someone in anger says, “I paid good money for you. You'd better shape up.”

    I think we are on very difficult ground. We're on very difficult ground because of the complexity of human emotions and because of the personal, psychological possibilities that might come out of it. But I think on deeper ground we're in real trouble. Bearing a child is an enormous gift. Gifts come to us free, and we ought not to attach a price to others for those gifts. If we try to respect human integrity, well, generosity is an important social value. When you attach a dollar value to any aspect of the personal gift of the means to create life, that is a denial of the reality that the power to create life is a gift in the first place.

    Margaret Somerville has tried very hard to name the damage to the human spirit that occurs in this as “a serious ethical issue”. I think that's what payment for surrogates will do; it denigrates and harms the human spirit and it denies fundamental values; it trivializes the human importance of generosity and the gift of life. And I think it leads to alienation within the family.

º  (1615)  

    There are many stories of problems within marriages that have been caused by the bearing of a child for others by a woman. You probably are familiar with the story of Elizabeth Kane, who was the first surrogate mother to praise and talk about how wonderful it was to be able to commit herself to creating a child for others who really needed it--and by the way, it's not always infertile or medically disadvantaged people who go through with surrogate contracts, not at all.

    She later wrote her own story, called Birth Mother, in which, by consulting her diary, she realized all along that she had been helped by male authority figures to see herself in a light that wasn't true to her own feelings. She eventually said, when she considered how her daughter became alienated from her and how her marriage was damaged, she thought the gift of a child from one family to another was a pain for her own family. It was to build another family at the price of destroying her own.

    I think those feelings are very important to consider. Juliet has already told you before that we really don't know much of the story, because what we get is anecdotal success, and then it's over.

    I also think we need to try to identify the policy reasons for allowing recovery of expenses. We know the practice exists, but what are the policy reasons? What are some good policy...? If surrogacy in fact has potential for personal harm and for important undermining of social values, what is being positively affirmed in this?

    Everyone has the right to not to be prevented, not to have their fertility destroyed deliberately. That's a right to procreation. But I don't think we have unlimited rights to assistance to have a child. I'm afraid that a claim that says we need to be able to pay people for this does exactly that. So I'm puzzled, what would be the policy grounds, good policy justice grounds?

    There is no shortage of children to be adopted, so having a family is not the issue. Having a biological child or a child of a certain genetic type might be. Is that a good reason? I don't know.

    I find the compensation provisions in the bill to be entirely moving in the wrong direction, and I urge you to support the ones you put forward.

    The Chair: Thank you, Ms. Creighton. If you have other points, perhaps you will have a chance in your answers to make those.

    We'll move on now to Jean Haase, from the London Health Sciences Centre, at that institution's infertility clinic.

    Ms. Haase.

    Ms. Jean Haase (Social Worker, Infertility Clinic, London Health Sciences Centre): Thank you.

    I would first like to thank the standing committee for inviting me again to address some aspects of Bill C-56. In particular, I've been asked to talk to those relating to donor anonymity. I very much appreciate this opportunity. But I want to make it clear that my comments are my own, and not those of my employer.

    Frankly, I was surprised and disappointed that the bill does not reflect the majority decision of the committee and support ending the current system of anonymous donation. My first comment on this is that permitting donors to have choice is essential. But this choice should relate to whether or not to become a donor in the first place.

    I think the concept of providing choice about identity disclosure to the donor is in direct conflict with the principle in subclause 2(b), which indicates that the health and well-being of children must be given priority in all decisions. It is also in contradiction to clause 22, which speaks about promoting and protecting the health, safety, human dignity, and human rights of Canadians.

    I assume that the definition of health and well-being in the bill refers to emotional as well as physical health. As the bill now stands, it's the donor whose wishes would receive greater consideration. There is, therefore, the potential for the offspring to be emotionally damaged by anonymity, by perhaps never being able to exercise any rights with respect to their genetic identity. Being able to complete that sense of personal identity will, for some, therefore depend entirely on decisions made by adults, in which they played no part--in other words, their parents' choice of donor--if they had a choice--and the donor's wishes.

    Children may be born into the same family from different donors, but have different rights. How can this be anything but engineered discrimination? If these rights are important at all, then they're surely important to provide to the whole class of people born through donors. In embryo donation, for example, where there is no genetic connection between the social parents and their children, it could mean that, if both partners of a donating couple preferred anonymity, then there would be no way for a resulting child to ever be able to identity their genetic groups, or any of the siblings they may have. This is clearly not consistent with adoption, with which embryo donation is most analogous.

    My second point about anonymity is that it perpetuates shame and social stigma, which is a very unhealthy basis upon which to build one's family. On Monday morning, a particularly enlightened patient sat in my office with his wife, and declared that he felt nothing to be ashamed of in his infertility. He said that it was related to a genetic problem of unknown cause, which he was born with. He therefore shared this information with his family and friends, and had received a lot of good support from them. But he asked why a donor has to hide his role in the process, and remain anonymous. He should not feel ashamed either. Maybe if he were to be brought into the process, instead of being hidden, he could receive appropriate thanks and recognition. He would therefore not need any money.

    Increasingly, the patients that I see ask these kinds of insightful questions. They question the current system and demonstrate concern for the potential issues that their children might have to deal with in the future. More and more of them in fact ask if they could have a donor who would agree to be identifiable in the future.

    My third point relates to the justification that permitting the donor to have the last word about ID release compares to adoption practice legislation in other provinces and territories. Although I'm not an expert on the finer details of adoption policies in various provinces, I do believe this comparison is not based on factual reality, and is misleading.

    First, if a donor's role is being compared to that of a birth parent who is placing a child for adoption, that's problematic in itself. It fails to take into account that in traditional, or closed, adoption, decisions were made about an existing child, and often have taken place within the context of an emotional and situational crisis. Many birth mothers from traditional, closed adoption will tell you that they felt pressured, and were never informed about their rights. However, one presumes that the donor is making a rational, well-thought-out decision without any pressure--unless, of course, they're an egg sharer, when there are undoubtedly financial and emotional pressures.

º  (1620)  

    Adoption is based on the best interests of an existing child. But Bill C-56 fails to sufficiently protect the best interests of children born from ART, and in fact favours those of adults. B.C. has led the way in adoption reform. Children currently being adopted in that province have an unconditional right of access to the names of their biological parents. Under the current bill, donor-conceived children would certainly have fewer rights than B.C. adoptees.

    I simply do not buy the concern that there will be insufficient donors if they're no longer permitted to be anonymous. Let us be clear: what we are doing now to recruit anonymous donors is not working, as there are not enough, and there are unlikely to be enough, unless we begin to think about things in an entirely new way. Sperm donors are being overused. There are very serious implications to this, which patients themselves are beginning to raise. We simply have to come to grips with the issue of multiple children born from each donor.

    In relation to donor attitudes, Dr. Librach quoted some studies that seem to show that donors would not be recruited, or would not come forward, if their identity were known. I can quote another study from the U.S.A., which found in 1991 that 96% of sperm donors were prepared to share non-identifying information; 36% would still be donors if their anonymity couldn't be guaranteed; 60% would agree to meet or to provide identifying information to children aged 18; and 72% left personal messages to their offspring. So over 10 years ago, there were open donors. There must potentially be many more today.

    I finally want to make some comments about counselling. I think that, in paragraph 14(2)(b) of the bill, there's a reference to making counselling available to the extent required by the regulations. This is not exactly as the committee report has recommended. Recommendations 12, 15, 19, and 36 of your report all speak to the need for mandatory counselling, not merely making it available. I would hope, therefore, that the regulations will spell out in more detail how this counselling is to be defined; who is to carry it out; and under what circumstances it should be provided. It is an essential element of informed consent, and it should be integrated into the services provided.

    I recently wrote a report on counselling that looked at its role and regulation in the United Kingdom and Australia. The U.K. model, which requires counselling only to be offered, and doesn't adequately address who is to provide it, has been problematic. It has resulted in considerable inconsistencies. For example, some clinics merely keep a list of counsellors, but never actually refer patients to them. In other cases, a physician or a nurse will feel that the counselling they do with their patients is sufficient.

    So in conclusion, I hope the committee will recommend to the minister the necessary amendments, and that the legislation will then advance as quickly as possible. We need to move forward and have a regulatory body established. There is much work to be done.

º  (1625)  

    The Chair: Thank you, Ms. Haase.

    We'll now hear from Shirley Pratten, founding member of the New Reproductive Alternatives Society.

    Ms. Pratten.

    Ms. Shirley Pratten (Founding Member, New Reproductive Alternatives Society): Good afternoon. I just want to thank the committee for inviting me back, for your continued work and commitment to these issues, and for still being here.

    Quite a few things that Jean said overlap with what I have to say. When I read the whole bill, a lot of what came through for me was that, despite saying that they were a priority, it really seemed to be paying lip-service to the rights, needs, health, and welfare of the children being conceived through these technologies. When we talk about things going to non-anonymity, these contradict that.

    As somebody who is a registered nurse, and a psychiatric nurse who has worked for many years in the field of mental health, I echo what Jean says. When we talk about health, we maybe tend to focus a bit more on physical health. Of course, it is very important, but so is a person's mental health. Perhaps I can give you some examples, as I am also a founding member of Canada's first support group for donor-inseminated families. We have many parents in that group.

    In the B.C. group, several of us conceived children at the same clinic. Over the years of our meetings, we've discovered that four of us have children who have had severe depressions. Actually, Olivia had one when she was only 11. It appears to be chemical. We manage to joke a little bit about this and say, “Well, was this doctor using this depressed donor over, and over, and over again?” What has happened here? Why are our children having these depressions? Out of these four children, one of them has been hospitalized. The psychiatrist who was treating her said that the root of her depression was the fact that she did not know any information about the donor. This was definitely an issue for her. So a person's mental health is very important. Mind, body, and spirit are all connected.

    We were ecstatic when this committee recommended an end to donor anonymity, and absolutely devastated and distressed when this changed. When we allow a donor the right to choose whether or not he can be known to that child at the age of 18, what we really are saying is just appalling; we're now saying that donors will be the ones who control how donor insemination operates in this country. Donors are consenting adults. There isn't a legal right to be anonymous. Certainly, it has been a clinic policy, and has been decided by doctors. But to put this above the interests of the vulnerable child....

    Many of you were here when my daughter spoke to this committee in October. She said very clearly, “I never chose to not know who my biological father was.” So it's as if we forgot about them. We're talking about all the rights and the needs of the adults, but the children are the vulnerable offspring. They did not choose this.

    I was also concerned to hear that the minister had made a statement where she announced that donors are now no longer anonymous, as the clinic will know their names. I thought, well, that isn't any different; the clinics have always known their names. The clinics know who the donors are. Of course, when we're talking about anonymity and non-anonymity, we're talking about it in relation to the child being able to know this, and to have access to this information when they're of age.

    I think we should also be cautious when we're making comparisons with adoption. I've always said that there are many parallels between donor insemination and adoption. There are also many differences. Sometimes we have to be more aware of the differences than the similarities. Certainly we're talking about the similarities, when we're talking about what we've learned from adoption, in terms of people's need to know where they have come from. There are definite parallels there.

º  (1630)  

    The minister talked about having the same laws in place as for adoption, and some of what she was talking about were laws that were in place in the 1920s. The difference with adoption is that the child is already created, so you're trying to make the best of a situation that has occurred. With donor insemination it is not yet created. That's a really important thing to take into consideration, because she's saying it's acceptable for us to decide before these children are even born that they will never know or have access to their biological identities. How ethical is that?

    We should be paying attention to other countries that already have open systems--Sweden, Australia, New Zealand, and Austria. Most recently, a very important announcement was made from the Warnock committee in Britain. Baroness Warnock announced publicly that they had made a mistake in 1984 when they said donors should remain anonymous. They had succumbed at that time to the medical profession saying that the donors would dry up, and they've come to realize and believe that this is not the case. They said, with all the other research in place, they know how important it is for people to know where they have come from. So they are now taking a very public stand on donor insemination by saying that people must have access to identifying information on the donor.

    I'm sorry that Dr. Librach left. I think it's a shame when people throw out comments and then don't wait to hear what other people have to say. He was very clear that donors would not be willing to be known. But in a very recent front-page article in Maclean's magazine, two donors very publicly stated that they had no objection to being identified. A former donor in our group in B.C., who is away right now, was also involved with the Maclean's article and publicly said he was very willing to be known.

    We think there are many donors in Canada--as one of the MPs said, we're a very giving country--who are willing to come forward and donate. It's going to be a big public education job. The more education we do, the more untapped donors we'll have. As in other countries, older and more mature donors, who already have children of their own, will be coming forward to donate.

    I echo what Jean said about counselling, as someone who went through this without any counselling, as part of a couple. The doctor we saw thought he was doing counselling, but it wasn't the kind of counselling we needed. We needed counselling around the very complex psychosocial issues by an accredited mental health professional or somebody trained in that field, not by medical doctors.

    I don't know whether it is appropriate for me to comment now on clause 16. It just jumped out at me, and I'm not sure whether I understand it correctly. It talks about being able to destroy information, as long as permission for that is given by donors. I'm extremely concerned about us considering destroying any kind of information that pertains to the creation of people through these technologies.

    It raises another issue that people in our group have asked me to bring forward again today. What can be done in this bill about securing the records currently in doctors' offices for their children now? Unless the government takes some kind of stand by saying universally that no records can be destroyed in a doctor's office--because they won't come under this new system, however it's set up--they're very worried that what is available on their children will be destroyed.

º  (1635)  

    In subclause 18(4), it says that if two individuals believe they might be related, they can go to this agency, which will disclose information to them. Again, there is a flavour of Big Brother in this. If this information is being monitored, it's humiliating to be unable to access information that they believe is their own.

    The Chair: Ms. Pratten, I'm going to have to call an end to your presentation, because your time is up. Thank you very much.

    We'll move to Ms. Priestman, a research analyst with the Public Interest Advocacy Centre.

    Ms. Priestman.

    Ms. Kathleen Priestman (Research Analyst, Public Interest Advocacy Centre): As you just stated, I work with a non-governmental organization. We have been working in the area of privacy for a number of years, specifically on the development of the new Personal Information Protection and Electronic Documents Act.

    More recently, in the last year or so, it's been my area of interest and research to look at the impact of that legislation--and other legislation that's coming along in the health sector--on the privacy of personal health information; the protection of that information; and what's going to happen as we develop electronic databases, etc.

    So it's with great interest that I reviewed the interaction between the committee's report and clause 14--and subsequent clauses--in Bill C-56 as they relate to privacy and access to information. In my assessment, it looks like the committee got pretty much what they wanted, with the exception of necessary donor anonymity. As I read it, there is no reason within the bill preventing folks who wish to donate, and be known to the offspring, to reveal personal information. It does not disallow your consent to reveal personal information. As it states, the bill only allows those who wish to donate anonymously to continue to do so.

    In regard to health information, the bill granted a lot of...you know, the devil is in the regulations. A lot of the information remains to be seen, as the regulations are developed. The details of exactly how the health registry will work remain unknown. But it is my hope that the bill is a very good start to provide children with the information they need to know about their parents' backgrounds, and so on.

    However, where there is consent to reveal the identity of the donors, in these cases I fail to see where it wouldn't be possible for a person requesting artificial insemination to request the identity of a person who has already consented to being open about their identity. This would be the case if, in fact, it were an open donation that the parents had requested. The bill doesn't disallow open donorship. But it provides the possibility for it, while at the same time maintaining the ability to continue with anonymous donation--presumably for the reason of worrying that the pool of donors would dry up.

    If I can comment on Shirley's concern about the destruction of records, I read that the agency to be set up by the bill is not included in this. So the agency is not allowed to destroy records. This doesn't prevent records of donors being destroyed in doctors' offices. But for future donors, at any rate, within the bill there appears to be provisions whereby the information will not be destroyed. This is because it has to be sent to the agency, and the agency cannot destroy it. It appears to me that the donors can request destruction of the information in the hands of the other enabling or fertility clinics, etc., so that the latter are not able to hang onto this material. Presumably this is because they are not confident that there are sufficient protections around that information, and so on.

º  (1640)  

     The fact that they want the information available to the children doesn't necessarily mean that they want everyone to know what's going on. Their rights to privacy need to be respected. This is why, I would imagine, that section of the legislation was written in the way it was.

    In general, I would suggest that the health reporting information provisions do an excellent job of maintaining the basic information--the anonymous information. The consent provisions allow the donors to be revealed to the children, when they become of age, in a fairly straightforward manner. It looks like the bill does a very good job of adhering to the concerns of the committee.

    As for the concerns about mandatory provision for open or anonymous donorship, the ethical questions are, of course, huge. I don't feel that I have the answers. But I propose that it needs to be kept in mind that this kind of openness is something that we are unable to enforce in any other kind of reproduction. We don't have a right to know who our biological parents are, even if we live with them. What I mean by this is that there are a number of folks who--for whatever reasons of family--do not reveal all about the heredity of their children. I'm not suggesting that one or the other is a bad thing, but that we need to be a little bit careful in drafting the legislation, so that we don't actually use the words of rights, and thus impose a whole lot of changes into our understanding of how families work in the first place. In family law, the de facto parents have certain areas into which we do not intrude. I think that we need to consider that there are still these areas, no matter what method conception occurred.

    I just want to reiterate the specifics on which I was asked to deal with today, which are the aspects that the committee requested to be included in the bill. It seems to me that it's very much the case that most of these were included. The other folks witnessing today have described a lot of the pros for why it openness should be mandatory. I'm just suggesting that there are other opportunities there, as well.

º  (1645)  

    The Chair: Thank you, Ms. Priestman.

    We now go to Juliet Guichon from the University of Calgary.

    Ms. Guichon.

[Translation]

    Mrs. Juliet Guichon (Senior Researcher, Office of Medical Bioethics, Faculty of Medicine, University of Calgary): Good afternoon and thank you very much for your invitation.

[English]

     With respect, I'd like briefly to comment on Dr. Librach's testimony. His is an incomplete ethical analysis, because it simply isn't true that the existence and poignancy of demand for a practice can, in and of itself, justify the legitimacy of the practice.And it concerns me that he refers to pregnant women as carriers. I think that's indicative of the lack of careful attention to their interests in his assessment of the validity of the practice.

    But you've asked me here to address a specific question, and that is expenses in surrogacy arrangements. Are receipted expenses a good idea? My answer is this. In most cases receipted expenses will probably be used to deny human dignity. But there might be some rare cases where human dignity is not at risk, and therefore it might be wise to provide for such rare cases by careful drafting.

    All three legislative documents that have brought us to this point--Mr. Rock's proposed bill, your December report, and the present Bill C-56--share a fundamental guiding principle, and that is this. Assisted reproduction ought to be conducted in ways that protect and promote human dignity. To protect and promote human dignity in surrogacy, good legislation needs to do two things, and in this order: first, prevent the commodification of children; and second, preserve women's autonomy.

    The practice of paid and commercial surrogacy commodifies children. All three legislative documents address this possibility by banning paid and commercial surrogacy, and I endorse that ban.

    Preserving women's autonomy is perhaps more controversial. Some people believe, and believe strongly, that choosing in advance of conception to relinquish one's child at birth is an instance of the exercise of a woman's autonomy. I myself have grave doubts. I believe that autonomy has two essential components. To be autonomous means, first, having the capacity solely to decide, and second, not being prevented from solely deciding. And people tend to focus on the second, that is external constraints, as opposed to an internal capacity.

    Permit me to give you an example that I hope you'll find instructive and not trite. A normal 12-year-old child might easily be said to be sufficiently autonomous to do homework. The child has the capacity solely to decide how to do it, and no one is preventing the child from getting on with the job. The child's parents might quietly smile about this autonomy because they know, better than anyone else, that the reason the child has the capacity solely to decide how to do the homework, the reason the child is independent, is that the child's extraordinary initial dependency on them was acknowledged and attended to. The web of relationships into which the child was born has sustained the child and caused the child to mature to the point where he or she can now act with some independence.

    But imagine if some tragedy should suddenly ensue and the parents died. Would the child be sufficiently autonomous to do homework? There would probably be no external constraints, but the child's internal emotional turmoil would likely be such that the child would lose capacity to get on with the job. This diminishment in capacity could persist for some time.

    The point is, autonomy requires not just the absence of external constraint, but the existence of a web of relationships that nurtured and continue to nurture the individual. Such an understanding of autonomy recognizes that human beings are not essentially rational and disconnected, but embodied, emotive, and enmeshed in relationships.

    For this reason, and because of this understanding of autonomy, I find it troubling when people argue that the practice of surrogacy promotes women's autonomy. In my opinion, the practice usually seriously compromises autonomy, because surrogacy is designed to rupture the most significant relationship that exists in human society, that between mother and child. The loss of one's child, even an intended loss, is a severe blow from which a mother must recover. It is difficult to see how such a loss can promote a woman's autonomy.

    And yet it is possible that a particular surrogacy arrangement will not entail the rupture of that relationship. I'm thinking of the very rare case where the caring woman is a mother or sister of the prospective adopting mother. In such a case it is possible, though not certain, that the child is not commodified and the birth mother's autonomy is not compromised. For when such a child is born, it usually remains within the web of relationships that sustained and continues to sustain both birth mother and child.

º  (1650)  

    In such a case, would it be wrong to permit the people who intend to rear the child to pay for the pregnant woman's vitamins and maternity clothes? Let me be frank. The word “expenses” and the words “receipted expenses” can be weasel words. If you as legislators allow the payment of expenses, you're potentially opening the door to payments of up to $50,000 for food, housing, lost income, transport, maternity clothes, even pain and suffering and so on.

    This creates the potential problem that the so-called reimbursement of expenses could amount to a financial inducement to enter into an arrangement, and then you would be letting in by the back door what you foreclosed at the front door.

    Mr. Rock's bill, this committee's report, and Ms. McLellan's Bill C-56 each sought to close the front door to financial inducement. That this is a good thing can easily be seen by considering the hypothetical case of a 19-year-old, a case that is modeled on a real Florida case.

    A young single mother has few economic opportunities beyond those that pay minimum wage. This 19-year-old wants to stay at home with her young child. She is moved by the daytime television shows that present surrogacy in a positive light. She offers to be a surrogate mother for the payment of expenses, because these, very helpfully, will include food and rental payments on the trailer in which she lives.

    In this case an offer to pay her expenses might legitimately be seen as an offer to induce her to become pregnant with the purpose of severing her relationship to the child. Independently of how this arrangement would affect the dignity of the child, which is in itself an important consideration, the arrangement raises serious autonomy issues for the prospective birth mother, because clearly when the child is born she might wish to keep the child and she might feel that she cannot because of her earlier promise and, importantly, because she doesn't have sufficient funds to raise a second child.

    The payment of receipted expenses could, in such a case, be seen to be inducing the arrangement and compromising the human dignity of child and mother. On the other hand, it is possible in the case I posited earlier that expenses would not induce but merely compensate. Consider again the case of the mother or sister who after considerable thought and reflection wishes to enable her daughter or sister to rear a child. In such cases, which my research suggests are very rare, the child is not commodified because there is no exchange for cash, in the sense that money does not drive the deal, and the birth mother's autonomy might not be threatened by a severed relationship with the child. The birth mother would remain in relationship, hopefully with the child, albeit in an unusual relationship such as grandmother/mother, or aunt/mother relationship. The web of familial relationships would be different from that to which we are most accustomed, but the web would not be ripped apart, as usually occurs in the typical surrogacy case.

    So where human dignity is not in danger, there might well be a place for an expenses provision that genuinely compensates and does not induce.

    How could legislators allow for this possibility while realistically recognizing the obvious? Such cases will be rare. Your concern for the vulnerable and your disquiet about the self-interest of the profit-driven are usually fully justified.

    I suggest you could facilitate the rare familial case and still prevent the most typical case of commodification and denial of autonomy by this type of statutory language in an amendment to clause 12 of Bill C-56:

12(3) No person shall reimburse or be permitted by a licensing body to reimburse a surrogate mother for expenses unless the Agency has obtained information gathered by a qualified professional about the specific circumstances of the prospective surrogate mother prior to the pregnancy, and in particular, the Agency is fully satisfied on clear and compelling evidence that the women is acting autonomously and that the promise of payment of receipted expenses will not induce the woman to become pregnant.

    In other words, the agency could permit the payment of receipted expenses in those rare cases where a professional has assessed the prospective birth mother prior to the pregnancy and has given an opinion as to the woman's autonomy and whether the promise of payment of expenses would induce or would compensate. Where the agency is convinced that the women is acting autonomously and payment is in fact compensatory rather than inducing, the agency could permit the payment of receipted expenses.

º  (1655)  

    One advantage of this proposal is that by sending a professional to assess the prospective birth mother, you would be intervening in a way that might not just be evaluative but also practically useful to the woman.

    Take again the case of the 19-year-old single mom. If the professional, presumably a social worker, meets with that woman in her home, the professional would be in a position to advise her about other economic opportunities. This intervention would hopefully advance the young woman's autonomy. Ideally such an intervention would give the woman practical information and encouragement to permit her to stay in a relationship with her child and rear it, without needing to create and to sever her relationship with a second child.

    In addressing the receipted expenses issue, I recommend that you proceed with care. It is wise to prevent financial inducement that jeopardizes human dignity, and yet it might be appropriate to permit compensation in those rare cases where human dignity isn't at risk.

    For these reasons, Madam Chairwoman, I respectfully suggest that clause 12 of Bill C-56 be amended to include a subclause requiring the agency to permit the payment of receipted expenses only when a professional has assessed the situation in advance of the pregnancy and can confidently report, on clear and compelling evidence, that the prospective birth mother is acting autonomously and the payment of receipted expenses would compensate but not induce a woman to become a surrogate mother.

    Merci beaucoup.

    The Chair: Thank you, Ms. Guichon.

    Our last witness will be Heather Brooks from Xytex Canada.

    Thank you.

    Ms. Heather Brooks (Services Coordinator, Xytex Canada Inc.): Good afternoon, ladies and gentlemen. Thank you for this opportunity to present a sperm bank perspective on Bill C-56 and your recommendations.

    My name is Heather Brooks. I am a registered nurse. My title is Canadian services coordinator for Xytex Canada and its parent company, Xytex Corporation. As a registered nurse working in reproductive services for the past seven years I have worked with literally hundreds of patients who seek donor insemination as a means of creating a family. I'm also a former infertility patient myself, and I understand their desire and their willingness to go to great lengths to create their families.

    Donor insemination patients come from all walks of life, and we must remember that the laws we enact will have broad-ranging impact on all involved parties.

    Today I speak specifically on two topics impacted by Bill C-56, sperm donor anonymity and compensation. While these topics address quite different issues, combined with Health Canada's stringent donor screening guidelines they have the potential to dramatically impact the future of donor insemination in Canada.

    We have great concern that if idealism is not tempered with pragmatism, we will be left with a decimated donor panel and patients will be forced to seek donors underground or across the borders in the sort of reproductive tourism seen in Europe today. Ultimately, we will limit or eliminate access to a family-building alternative for those handicapped by male factor infertility or genetic illnesses.

    In regard to donor anonymity, while Bill C-56 calls for a mandatory registry with voluntary identity release, Xytex Canada recognizes that the standing committee's recommendation 19 calls for mandatory identity release. While we fully support a registry for release of pertinent medical information, we are concerned about the impact of mandatory identity release and the access to donors. Xytex believes it is important to provide as much donor information as possible to our patients up front so that they may make well-informed decisions about their donor and, at an appropriate time, provide this information to their children.

    Our supplemental profiles provide far more information than would likely be required by regulations, including a donor personal essay, personality evaluation, and a three- to four-generation detailed social and medical history. Since 1994 many of our donors voluntarily provide childhood and adult photographs, and since 2000 some of our donors voluntarily sign identity release agreements.

    I do have a copy of one of our profiles, if anybody is interested and would like to see that later.

    Some say providing this information is not right, but based on responses from our patients and the reaction of other international sperm banks, which are beginning to follow the lead of Xytex, we seem to be heading in the right direction. Remember, though, our options are voluntary. At their first interview and at every subsequent blood draw we ask our donors to consider releasing their identity and providing image options. If our donors wish, we provide non-identifying information about pregnancies and birth, and in some cases provide letters and photographs from grateful parents and their offspring. In some cases, formerly anonymous donors contacted years later have agreed to the release of their identity.

    Currently there are possibly five identity release programs in North America, and only Xytex Canada is currently providing one to the provinces of Canada. None of the other programs meet the testing and screening guidelines of Health Canada. A mandatory identity release policy would reduce the number of available donors in our program from about 45 to 10.

    You have heard testimony from donor insemination offspring who wish for mandatory identity release. Please remember that their experience is coloured by the fact that they know little or nothing about their donors, and in many cases were not told about their donor origins until they were adults themselves.

    Xytex Canada knows firsthand the impact of mandatory identity release, because we are one of the few providers of identity release donors to Switzerland, which has newly mandated identity release regulations. Swiss clinics find it nearly impossible to recruit identity release donors for their patients, and patients who cannot access the services of Procrea, the Swiss affiliate for Xytex, seek services in Denmark, Spain, and other countries with less restrictive laws.

»  (1700)  

    Ultimately, you must consider that while you can mandate the release of information, can you possibly mandate how and when parents tell their children of their biological origins? According to a study published in the journal of the European Society for Human Reproduction and Embryology, also known as ESHRE, a majority of Swedish parents are not telling their children of their donor origins even though Sweden has mandated identity release since 1985.

    Holland recently legislated donor insemination out of health care. With mandated identity release and a reimbursement rate of only $18 per procedure, clinics have discontinued this valuable service to their patients. It is likely that patients will seek treatment in Belgium, Denmark, and Norway, where regulations are less restrictive. Mandatory identity release in Canada will likely block those patients handicapped by male factor infertility or genetic issues from creating a child with a biological link to them unless they can afford to travel for treatment.

    Both Bill C-56 and the committee's recommendations call for an end to donor compensation, although Bill C-56 allows for receiptable expenses. Some witnesses spoke against compensation or reimbursement for sperm donors, but again, one must consider the source. Were the witnesses donor offspring who had little or no information on their donor? Do they resent that their donor was compensated for their time or do they truly resent a lack of information?

    Xytex Canada considers donor compensation much more than just payment for sperm samples. For our donors, compensation mandates healthy living, regular participation in the program, abstinence, and repetitive testing. It requires completing the necessary documentation, essays, family histories, and periodic updates. The sperm sample is really only a small part of being a Xytex Canada donor.

    Currently, Xytex Canada accepts only about 3% to 4% of all donor applicants. Many candidates are rejected because of age, medical issues, and, most importantly, sample quality. Eliminating compensation will likely reduce regular participation and result in a drop in sample quality. While our programs may still recruit some donors, you must realize that there are only a handful of programs currently recruiting in Canada, and only two programs, Xytex and Fairfax, that are providing from outside the provinces. Given Health Canada's guidelines, which are the strictest in the world, and the additional burden of non-compensation, it is doubtful that a sufficient supply of Canadian donors could be recruited with acceptable medical histories and sample quality. Again, some patients will be forced to go underground or seek reproductive treatment in the U.S. or other countries.

    Much has been said and written comparing sperm donors to blood donors, but you can't compare apples to oranges. Sperm donors are creating lives; blood donors are saving them. There is seldom, if ever, a link between the blood donor and the recipient, but today many of the donors know of their offspring and even interact with them directly or through our program.

    Xytex Canada offspring are ensured a future that includes advanced detailed information about their donor, often including photograph and video options. It is still too early to know the outcome of this. Will they want more?

    We continue to aggressively recruit donors willing to meet offspring and to provide image options, but we will be unable to supply our current patient population with high-quality samples from acceptable donors with the additional burden of mandated non-compensation and identity release.

    Xytex Canada and Xytex Corporation are moving toward greater openness before and after conception faster and with more success than virtually any other bank in the world. The key to our success is providing our donors voluntary options up front, encouraging and valuing their participation, and making their participation real by providing information from parents and their offspring.

    In an ideal world we could recruit unlimited numbers of identity-release donors willing to participate on an altruistic basis. The reality is, there are less than 50 identity-release donors current available in North America, even with compensation or reimbursement. These are recruited from programs with voluntary agreements. Of those, only eight are currently available to Canadians, all through Xytex Canada.

    We ask and implore you to balance the consideration of children's rights with those of patients across Canada, from Newfoundland to British Columbia, who desperately want a family but are handicapped by male factor infertility or genetic illnesses. Please balance idealism with pragmatism and enact legislation that addresses tomorrow's hopes with today's realities.

»  (1705)  

    The Chair: Thank you, Ms. Brooks.

    That's the end of the presentations by our witnesses. We have about 20 or 25 minutes left. I'm going to suggest that those people who have not yet asked questions get at least their five minutes before I move to the people who've already had a turn.

    I'm going to begin with Mr. Ménard.

[Translation]

    Mr. Réal Ménard: I am interested in the whole idea of donor anonymity. I have only one question and it will be brief.

    I am very much in favor of the idea of eliminating the discretionary aspect of disclosure concerning sperm donations. We have had two meetings with the officials, and the argument that was always coming back was that if the federal government was to enshrine in its act the obligation of disclosing the donors identity, it could have concrete financial consequences in the area of family law in the provinces, for example at the level of obligations, alimony, education, and so on. That is the reason why the federal government did not go down this path.

    How do you react to this argument and which counter argument would you advance in rebuttle? My question is addressed to Mrs. Haase and to anyone who wants to answer it.

»  (1710)  

[English]

    Ms. Shirley Pratten: I would like you to repeat the question. I got some of it, but I'm not sure I completely understood the final question.

    The Chair: Mr. Ménard, please state your question in one statement. I didn't understand where you were going.

[Translation]

    Mr. Réal Ménard: It is quite simple. I want to know the reason why the federal government did not make it mandatory in the bill to disclose the identity of donors. That would have consequences in the family law of the provinces, at the level of alimony, the right to an education and many other financial claims. What do you think of this argument and what counter argument do you suggest to us? It seems to me that this question is quite clear.

[English]

    Ms. Shirley Pratten: Actually, I meant to address that when I was speaking as well. The standing committee in their recommendations said very clearly that as part of moving toward an open system, all of the provinces would have to reform their law to protect donors, legally and financially. The Yukon, Newfoundland, and Quebec have already done that. The rest of the provinces haven't.

    That's twofold, because it not only protects the donor from financial and legal responsibility but also legalizes the parentage of the infertile father, because technically these children have two fathers until that is made clear.

    So, yes, we noticed that in the bill nothing about the law reform was mentioned at all. It seems that if three provinces have done it then it should be able to be done across the country, in every province. It's quite simple legislation.

    The Chair: Ms. Guichon would like to comment on this as well.

    Ms. Juliet Guichon: I think it's fair to say Ottawa will be setting the overall policy on this issue. The provinces will follow, hopefully, relatively quickly because their jurisdiction is family law and obviously that's not the jurisdiction of the federal government. I think once the policy is clear and there's some guidance on principles, then hopefully family law will pick it up.

    There are a lot of inconsistencies already. For example, in Alberta the Parentage and Maintenance Protection Act allows a woman who's pregnant by a man not her husband, a man to whom she's not married, to go to court to force him to pay her expenses. That legislation is currently being used to facilitate surrogacy agreements and payment of expenses in surrogacy agreements.

    So at the moment there is existing law with a particular and agreed-upon purpose, but it is being used in ways for which it was never contemplated. I think most of what you do is going to set up a ripple effect, which has to be attended to.

[Translation]

    Mr. Réal Ménard: My question is not being answered. I want to be clear about this. The federal government cannot intervene in the area of family law.

    Mrs. Juliet Guichon: I know.

    Mr. Réal Ménard: In answer to your request, the federal government is saying that if it was to do so, it would intervene in the province's jurisdiction. All of what you have been telling me up to now is proving the federal government right. You said that in Alberta, there are some cases where alimony is being claimed.

    So the open system that you are calling for and that most members of the committee are wishing for cannot come from the federal government for the reasons that we are talking about. All your arguments are proving the federal government right.

[English]

    Ms. Juliet Guichon: I think you'll find jurisdiction under the criminal law power, and under the peace, order, and good government power. Then you'll set clear policy and the provinces will respond, in accordance with your policy, because you will have wrestled with the difficult ethical issues. They won't want to touch it; they'll just want to get on with it.

    The Chair: Thank you, Mr. Ménard.

    Mr. Szabo.

    Mr. Paul Szabo (Mississauga South, Lib.): Ms. Haase, during your statements you referred to a situation where a patient or a donor felt pressure and was not fully informed. This area is quite important--the idea of informed voluntary consent, etc.

    I don't know if you've considered the bill more broadly in that regard, but how important is it to people to know everything--the stats and what's going to happen--so there will be no repercussions as a result of finding out later? How important are the details?

    Mr. Jean Haase: They're absolutely crucial, because unless they get all the information, all pieces of the puzzle, and have them discussed and explored with them, they're basing their decision-making on partial information.

    Not all of the implications of these technologies are medical, by any means. If they're not having some of the psychological, emotional, legal, ethical, and family-related issues discussed with them, then they're not making an informed consent. I think that applies to donors as much as recipients.

    Right now, hardly any sperm donors get--

»  (1715)  

    Mr. Paul Szabo: Does that same argument apply to those who have discussed contributing or donating their surplus embryos for research purposes?

    Ms. Jean Haase: In our clinic, before they even go through the IVF procedure, they are asked what they want to do in the event there are any excess embryos. That is explored with them by either the psychologist or myself.

    Mr. Paul Szabo: In a surrogacy situation--and I'm not sure whether Jean or Shirley wants to answer--we harvest an egg from a woman for the process. Is it the practice to take the one egg that would be selected each month by the woman's body, or is there a harvesting process where more than one egg is taken?

    Ms. Jean Haase: We don't do surrogacy at our clinic, but I can tell you nobody goes through IVF without ovulation-stimulating drugs, because the intent is to get the woman to produce multiple eggs.

    Mr. Paul Szabo: So if somebody wants to donate an egg, they don't just donate one egg. We're going to interfere with....

    Ms. Jean Haase: The donor goes through the same process they would go through to have their own child. It's ovulation stimulation.

    Mr. Paul Szabo: If somebody wanted to donate an egg for surrogacy purposes and they didn't have a uterus, but they had healthy eggs--

    Ms. Jean Haase: Do you mean someone who wanted to receive a donated egg because they didn't have ovaries or eggs?

    Mr. Paul Szabo: Yes. If somebody is donating an egg for surrogacy purposes, is that egg harvested the same way as it would be for in vitro for themselves, with multiple eggs, drugs, and all of it?

    Ms. Jean Haase: Yes, my understanding is that the process is the same whether you're going through egg donation or surrogacy as the surrogate.

    Mr. Paul Szabo: So the surrogate would have multiple implants?

    Ms. Jean Haase: They would probably have more than one embryo implanted, yes.

    Mr. Paul Szabo: It would be just like IVF.

    Ms. Brooks, you said that only 2% to 3% of your donors are accepted. Is that with regard to both sperm and eggs?

    Ms. Heather Brooks: No, we're only a donor semen bank; we have only sperm donors.

    Mr. Paul Szabo: Do you also purchase embryos?

    Ms. Heather Brooks: No.

    Mr. Paul Szabo: You don't sell embryos.

    Ms. Heather Brooks: No, sir.

    Mr. Paul Szabo: If somebody wants to donate their sperm and they are, as you put it, of high enough quality, how much do they get for donating a sample of sperm?

    Ms. Heather Brooks: They're paid $65 for a donation.

    Mr. Paul Szabo: How often can they donate?

»  (1720)  

    Ms. Heather Brooks: They have to be abstinent for two to three days, so they're only allowed to come in two to three times a week.

    Mr. Paul Szabo: How much do you sell the sperm for?

    Ms. Heather Brooks: The donor samples vary according to whether they're already prepared for use or if they're what's called a raw, an unwashed, sample. Right now the current prices go anywhere from $300 to $380. There is a range.

    Mr. Paul Szabo: This will be my final question. There seemed to be a bit of a consensus with regard to the suggestion that the bill strips away the dignity of the human being and the child and maybe goes more towards an inanimate biological or mechanical approach. As long as you're here, is there anything else in this bill you've seen that reflects something you think should be changed?

    I know that Shirley mentioned that, and I think that Phyllis did as well, about the dignity of the human being. It was a little shot at Health Canada, anyway.

    Ms. Shirley Pratten: Yes. Certainly, the biggest issues for us were, I did mention...because they pertain to the health, the emotional and physical well-being, and the dignity of the offspring. For us it did largely tie in with anonymity and the commercialization. Because of the payment aspects, many of these children feel that money was paid for their creation, and they don't feel good about that.

    The Chair: Thank you.

    Madame Thibeault.

[Translation]

    Ms. Yolande Thibeault (Saint-Lambert, Lib.): Thank you Madam Chair.

    Mrs. Creighton, I have heard today two or three different persons say that in general, surrogate mothers are women who already have families. Did I understand well? Is this the general rule or does it sometime happen that a teenage girl, for some reason or other, becomes a surrogate mother?

    Mrs. Phyllis Creighton: I believe that most surrogate mothers already have families. There are advantages in having already had children because the woman is already familiar with the whole process.

    Ms. Yolande Thibeault: You also talked about the damage to the surrogate mothers' human spirit that this kind of procedure often caused. So I was wondering whether there were very young women who didn't have any children themselves and who were going through that process, and I was telling myself that it would be even much more harmful for a woman who had never had children.

    Mrs. Phyllis Creighton: To severe the link with ones own child is destroying the means to nurture the civilization. A young woman cannot imagine what it will cost her. A woman who has already had children cannot either.

    Ms. Yolande Thibeault: Some films from the United States showed teenage girls who were prepared to carry a child for another couple for significant monetary considerations. That was just a comment. I want to tell you that entirely agree with you. I feel a profound aversion to this whole field. I would like all of this to be banned forever.

[English]

    Ms. Phyllis Creighton: I would like to say that, if we're talking about family-building, we need to be a lot more imaginative. We need to have more moral imagination. Families are not well built on lies. Families are not well built where children are not trusted to be full and equal with other children. It's fundamentally undermining the notion that a child counts when there's trade in pregnancy.

    I disagree with Juliet totally that there is any argument at all for payment, because I think we'll see the weasel word, and we'll think it's incremental. The situations she describes I think will be ones in which generosity will apply. And I am very concerned that the right of donors to privacy...what grounds a donor's right to privacy?

    You do know, I assume--and I certainly pointed them out to you when I sent you a brief--that there are other governments, including the Austrian, that interpreted article 7 of the UN Convention on the Rights of the Child to require that identity information be provided for a child. You probably do know that there are late-onset diseases that make continued contact with a donor very important, because your diagnosis, if you get one, and adequate treatment depend upon such knowledge.

    So I really call into question how much humanitarian understanding we have here. I really thought the standing committee did a fine job of trying to wrestle with that, and I hope you won't give up now.

    The Chair: Thank you.

    Dr. Lunney.

    Mr. James Lunney: We're pretty short on time, but Shirley Pratten, you mentioned an article in Maclean's on sperm donors. Could you tell us when that was?

    Ms. Shirley Pratten: Yes, it was May 20. It was very recent. The cover page was devoted to this article.

»  (1725)  

    Mr. James Lunney: Yes, I guess I don't read Maclean's. At any rate, thank you.

    To Heather Brooks, how long has Xytex been operating out of Toronto?

    Ms. Heather Brooks: In Toronto it has been two years. It's been in business since 1977.

    Mr. James Lunney: And where is that based?

    Ms. Heather Brooks: It's based in Augusta, Georgia, and they also have an office in Atlanta, Georgia.

    Mr. James Lunney: Now, in response to a question by my colleague across the way here, Mr. Szabo, you mentioned that the donors are paid $65 for a sample and they can give up to three times a week. You sell those for about $300 to $380. How many of those sales would you get from one sperm sample? Is it multiple?

    Ms. Heather Brooks: It depends, certainly, on the volume of the ejaculated samples, so probably anywhere between eight and twelve.

    Mr. James Lunney: Eight and twelve samples, yes, because there are millions--

    The Chair: And a sample sells for $350, then.

    Ms. Heather Brooks: Right.

    The Chair: So you pay this person $65, and you might get as many as eight samples from that one process.

    Ms. Heather Brooks: We have to pay for all the testing that's done to be compliant with Health Canada's--

    The Chair: Do you do the testing at your particular place?

    Ms. Heather Brooks: Yes.

    The Chair: I'm sorry, Dr. Lunney. It's just fascinating to me, the amount of money changing hands.

    Ms. Heather Brooks: We pay privately for all that testing.

    Mr. James Lunney: Thank you.

    I have something here: “Xytex Corporation: Donor Compensation”. Would you recognize this from your website:?

    Ms. Heather Brooks: Okay.

    Mr. James Lunney: It says:

Monetary gain should not be the only reason you become a sperm donor.

    It goes on to say that you have to

adjust your lifestyle to make your sperm available to us. We provide compensation as an incentive for you to participate regularly and maintain a healthy body. If approved, you are compensated a total of $65 per acceptable sample, and may leave up to three samples weekly. Sample quality is based on a number of variable factors (including) sperm count, motility, and volume.

    Now, on donor referrals:

    

Many successful donors are referred to Xytex by their friends or fellow students. Referrals can be an excellent source of revenue. If you're comfortable talking to others about a Xytex donor, for every individual you refer who completes the application, you receive a $10 referral fee and for every candidate who becomes a Xytex donor you receive a referral fee of $100.

    Do you recognize that as your--

    Ms. Heather Brooks: Yes.

    Mr. James Lunney: Thank you for painting such a clear picture of where the committee was quite determined we did not want to see this process go. We were quite concerned about commodification.

    The Chair: Questions only, Dr. Lunney.

    Mr. James Lunney: Well, I just wanted to thank the witness for painting such a clear picture for us.

    I'll just come back to Ms. Creighton. I'd like to thank her also for the comments she made about the relationship between the unborn and the mother, about the unborn relating to the voice, to the heartbeat, to her routine environment, and even to background noises. We know that the auditory sense is one of the first to develop in utero and that the child has already bonded to the mother's voice and to environmental sounds such as traffic noises and the voices of the spouse and other people in the home. The postpartum depression--the grief, the regret, the mourning, and so on that is associated with the separation of mother and child--can last for a lot of years even in a case like this. I'd like to thank her for bringing that to the fore.

    You had mentioned that you're not happy with some changes that happened between our draft report and the bill. How would you like to see the bill amended? Do you have any recommendations, Phyllis?

    The Chair: If I could interject here, I was thinking the same thing myself. People have come on very short notice for this round, and I'm wondering if people might want to think about it over the weekend. Then maybe they could fax their thoughts to me or to the clerk, if not in legal language at least by identifying the clause they would like amended and stating what they would like it to say.

    I can't promise anything, but one of the members of the committee might be willing to bring such amendments forward. You would have to put down which clause it is you don't like and what you would like it to say that is different. It doesn't have to be in perfect legal language.

    Dr. Lunney, would you go along with that more general offer?

    Mr. James Lunney: Certainly.

    Could we have a reply from Ms. Creighton? She seems to have something she'd like to add.

    Ms. Phyllis Creighton: I think it's possible that you would be interested in the exploration of fetal bonding in the book we wrote in 1990. It's very important you know that none of what we're asking for is new; the resistance of the established medical profession and its associates is quite clear. I myself helped to break down the barriers on natural childbirth. They said it couldn't be done. That was a whole struggle.

    I've been calling for an open system for identity disclosure since 1977, when I wrote a book that still sells quite a bit, Artificial Insemination by Donor. I think it's very important that you remember this: I do not think it is appropriate for this legislation to include subclause 18(3), because subclause 18(3) establishes that the donor has a right, a prior right.

    I believe in the equality of children. I believe in what the United Nations has said, that children have a right to know the identity of their family. I believe we've been very poor at acknowledging children's needs. So I don't see how you can justify such a statement, that it “shall not be disclosed without the donor's written consent”. It is the reverse of what you asked for.

    I think the fact that it's genetically important is recognized in subclause 18(4), because the issue of consanguinity in marriage is recognized in that subclause. The fact that death might result from your inability to have ongoing contact with the donor ought to be something you recognize, given the development in genetics.

    I can have a try to see what could be done, but basically you were right in the first place.

»  (1730)  

    The Chair: Dr. Fry.

    Ms. Hedy Fry: Thank you very much, Madam Chair.

    I realize we don't have a lot of time, and I want to thank everybody for some very interesting presentations.

    I'm very sorry that Juliet Guichon has left, because I think she prefaced for me the particular concern that I wanted to ensure was reflected in this piece of legislation. I just want to quickly quote her. She talked about the fact that what we're talking about here is to protect and promote human dignity.

    I think what we need to remember is that in each case where we're talking about assisted human reproduction, there are either three or four humans involved. There is the donor, there is the couple who are infertile and wish to have assistance in having a child, and then there is the child. I think the important thing we have to do is move away from emotionalism and idealism, as was said by Ms. Brooks, and look at ways in which we can recognize that if there are four or possibly three humans involved in this issue, they all have the right to that protection and that dignity, every single one of them.

    The thing we need to do is balance very carefully the protection of human dignity of the donor, the would-be parents who themselves are unable to bear children, and the child. That is not an easy thing to do. And the way to get mired in this is to resort to emotionalism and ideology.

    I think we need to talk about how we can find ways of decreasing commodification and commercialization, and I'm very clear on that. For me, the issue of sperm and egg donation that is going to be paid for becomes a real problem, and I mentioned that to the doctor who was here.

    But at the same time, how do we ensure there is assistance for people who are genuinely unable to have children, who need to and wish to, and ensure we have sources of donation for them?

    So for me, it's not simply black or white. It never is and it never can be. And if we are to talk here about just because--

    The Chair: Do you have a question, Dr. Fry?

    Ms. Hedy Fry: Yes, I do. The question is for Ms. Creighton.

    If we are to talk here about family building, I don't believe we're in the process of family building any more than every time a person has a child, and whether they would make a good mother or not, they keep that child, continue to spend a life with that child, live in a family where there is abuse and lack of support for the well-being of that child. We don't suddenly enter and say you can or can not have children. We recognize that there is a self-selection and that there are things that we cannot control, that we must be prepared not to control.

    By suggesting that we will have to look only at families to donate, and the bonding of children, I'm concerned that we're actually trying to control--because we have the right in a piece of legislation--human behaviour, and to control the building of families, which is not what we're trying to do here.

    My question is, do you not feel that this is an attempt in some way, if we resort to ideology, to actually control things that we do not have control over in real life, within biological birth, and that we must prevent ourselves from using legislation to suddenly play God with people's lives, that we have to be careful about that?

    I want to know if you feel that this is an issue we're skirting sometimes.

»  (1735)  

    Ms. Phyllis Creighton: Ms. Fry, it seems to me when you deny a child the possibility of knowing the identity of 50% of themselves, where they came from, from having any sense of their kith and kin and their background, in a day when genetics are important and when rootedness is obviously of importance because of genealogy, you are playing God. You're precisely playing God with those children.

    And I think it's probably a question of you and I needing much more time than we have for conversation. The book I wrote on donor insemination was used in a clinic with parents for a long time.

    Ms. Hedy Fry: I know, and I would like to read your book, but you haven't answered my question.

    Ms. Phyllis Creighton: What I wish to say is that I do care about donors. I'd like donating to be an honourable, recognized action. I would not like it to be sullied with money. The same with surrogacy.

    Ms. Hedy Fry: I'm in agreement with you on that, so we're not in disagreement on everything.

    What I'm suggesting, though, is that the issue I've heard you promoting is that we're into family building, and I don't believe we're into family building. I think the answer I wanted from you is that, yes, of course we don't want to commodify. Of course we don't want to bring this down to selling eggs and sperm. I think Madam Guichon talked very clearly about the balance that we need to achieve in terms of compensation or inducement, and I think she hit that very well.

    The piece that I am concerned about, however, that I felt...that what you were trying to say is that we don't have the ability to do that in real life. We don't have the ability to decide on families in real life.

    Ms. Phyllis Creighton: You have the ability to provide a prompt to honesty if you make that identity disclosure available as a right to a child--

    Ms. Hedy Fry: But it's here in the legislation.

    Ms. Phyllis Creighton: No, it's not. It will be by consent--

    Ms. Hedy Fry: The family history, the medical history, all of the genetics of that child.... All you don't know is one thing: the name of the person.

    Ms. Phyllis Creighton: Can you imagine the frustration when you get to the age of 19 and you know everything else but that? We need to grow up truthfully. I'm not talking about the government building the family; I'm talking about what makes a strong family. It's what makes business operate. There has to be trust, not deception and lies.

    The Chair: If I can defend Ms. Creighton just for one second--

    Ms. Hedy Fry: I'm not abusing Ms. Creighton, I'm just--

    The Chair: Just a minute. She never mentioned the words “building families”. If you don't like that, it's our report that was called Building Families. So you can blame me, but don't blame her.

    Some hon. members: Oh, oh!

    Ms. Phyllis Creighton: I was reflecting back what I thought you did.

    Ms. Hedy Fry: I'm sorry. Thank you, Madam Chair.

    I was just focusing on the family building piece because I think all we're saying is we don't want to identify the name of the person. We identify everything else about them; that's important for the health and well-being. We just don't want to know the name. So that I could donate an egg, you need to know everything about my history.

    You make an important point, which I spoke to the last time, that we need to be able to keep an ongoing contact with that donor who, when they're 19.... We need to know at 30, 35, 40 if they develop late-onset diabetes; we need to know the ongoing history. That is a piece that's not in the bill that I would like to see put in.

    But I still think, to prevent any problems, let's protect the human dignity of the donor by ensuring that one thing is kept secret, and that is the name of the person. Everything else can be known.

    Ms. Phyllis Creighton: In 1977 and 1990 respectively, in the book I wrote and in what I submitted to the Royal Commission on New Reproductive Technologies, I said let's get the legislation clear so that those who donate gametes are not legally or financially responsible in any way, and then we can establish the right course morally.

    I really think that people will be capable of rising to that challenge, and we will be richer for having a more humane system.

    The Chair: Ms. Pratten, you would like to respond to this question of anonymity.

    Ms. Shirley Pratten: I also want to respond to Ms. Fry. When you're talking about balancing the rights of everybody involved, we have to remember that the child is not an equal player in that.

    Ms. Hedy Fry: I don't think the child ever has been. Even if the child were born biologically, the child didn't choose his parents.

    Ms. Shirley Pratten: That ties in with something Kathleen said that I wanted to address. She was making reference to situations out there not being perfect and comparing that to this.

    I've heard many people say, well, there are lots of children born by affairs out there; lots of children don't know who their biological fathers are. But does that mean, because people are irresponsible in their personal lives, we should sanction a whole government to say, “Okay, we'll just do anonymous donations”? Of course not. This is a carefully controlled, deliberate thing.

»  (1740)  

    Ms. Hedy Fry: It's not anonymous donation. The bill is clear. It is non-nominal; it's not naming. And there is no prohibition.

    Ms. Shirley Pratten: That's anonymous.

    Ms. Hedy Fry: No, that's not anonymous.

    Ms. Shirley Pratten: If the child doesn't know, it's anonymous.

    Ms. Hedy Fry: No, it's not. The child knows everything else. It's non-nominal. This is the terminology in public health.

    The Chair: Maybe I can clarify for a minute.

    We know, Dr. Fry, about the non-anonymity that has to do with medical records and all that, but the critical issue the committee looked at and the witnesses testified about was.... We all agree with you that we have to have all this medical background. The word “anonymity” in this forum has become synonymous with “identity”.

    Do you see what I mean? So we've already been through that sort of hierarchy of anonymity--

    Ms. Hedy Fry: But, Madam Chair, while this may have been synonymous with what was discussed at this table, in public health there is a term called “non-nominal” in which you know everything about the patient but the name.

    The Chair: Well, we should maybe use those terms.

    Ms. Hedy Fry: That is what I'm trying to do. I'm trying to use a bona fide term and not one that we have just used loosey-goosey. We have to talk about the real terminology, and “non-nominal” is the terminology where you do not name, but you know everything else.

    Mr. James Lunney: Dr. Fry, I would suggest now that we've been all the way through the draft legislation it's a bad time to change definitions of the terminology--at least in how we've understood it and everybody else does.

    The Chair: I think we understand it. I think we've been using it selectively as we all agreed on the baseline around the anonymity question--that is, medical records, etc. Through the evolution of the discussion we realized that the issue of anonymity had to do with identity, or name and picture, etc. That's why we have moved to it in a shorthand sort of way over the last 18 months.

    I just want to share that with you so you understand why we've made those two things synonymous. There was no disagreement about the rest. There was only the question, and that's what a lot of these witnesses came to talk about.

    The fact that it is such a big issue is exactly why surrogacy and anonymity and money turned out to be three huge issues through all our hearings, and that's why we decided to have one more go-round on those issues, to just remind ourselves what we had heard from the mouths of some of the people who told us this--although they are not the only people.

    Ms. Hedy Fry: Madam Chair, I'm not arguing. I'm saying that at a time when we're discussing the meaning of language, we must be very clear on what we're saying. We can't allow language to be used that isn't really what it means.

    Thank you for filling me in on the history of how it happened, but the term “non-nominal” is one that I am using. I think it's imperative that the child needs to know everything. I think that Ms. Creighton talked about an ongoing monitoring to ensure that latent onset diseases, or whatever, are kept in the file. But to protect the dignity of the donor, there has to be a place where, for legal and other reasons, the donor is not prohibited from being known. But the donor should not be forced to be known.

    I think these are two different things.

    Ms. Shirley Pratten: The choice should be whether to be or not to be a donor. He has the choice to not be a donor, if he doesn't want to put the child's needs first.

    Ms. Hedy Fry: That's a black and white choice. We're not dealing in black and white issues.

    Ms. Shirley Pratten: But when it comes to a child, and all the things that you've heard...?

    Ms. Hedy Fry: We're talking about balancing the rights of three sets of people--

    Ms. Shirley Pratten: Nobody is forcing him to be a donor, but as I say, the child is not equal in this.

    Ms. Hedy Fry: Everybody's position is clear on this. We could argue forever and not come to agreement.

    The Chair: Thank you very much for your time and coming all this way to share your ideas with us. And thank you for the work that you do out in the field, to keep people talking and thinking about these issues.

    This meeting is now adjourned.