Frozen human egg buyers may face prosecution

Canada's fertility industry operates in a legal limbo that offers no protection to women having treatment, lawyers say.

It's illegal to buy human eggs within Canada, but eggs frozen using new technology freely cross from the U.S. border without checks by Canadian regulators.

"There's no protection in place right now for women who are undergoing the treatment," said Sherry Levitan, a lawyer who specializes in assisted human reproductive technology in Toronto.

Egg freezing, or cryopreservation, is a new technological option that became available in the last few years, lifting the geographic barriers of using fresh donor eggs.

People simply click through an online catalogue that offers various eye, hair colour and blood type options for anonymous donor eggs. Clients pay a fee of up to $12,000 to a U.S. egg bank that ships the frozen material in specially chilled thermos.

"It is a big business now and the question Canadians have to ask now is, 'Do we want baby making to be big business?'" said Maureen McTeer, a founding member of the Royal Commission on Reproductive and Genetic Technologies between 1989 and 1991.

The royal commission debated reproductive technologies, touching on a quagmire of legal, social and ethical issues that included the exploitation of surrogates and the sale of sperm and eggs.

Now, 20 years later, selling human eggs is a reality. The precious cargo arrives at Canadian fertility clinics, where the egg is carefully thawed and implanted.

Neither Health Canada nor Assisted Human Reproduction Canada said it has jurisdiction to regulate eggs.

Provinces haven't stepped in. Provincial colleges of physicians and surgeons look at the medicine of reproductive technology, but not the law.

No watchdog

Health Canada said the act requires confirmation of consent from the donor and an "exchange of documents on import," but the question of who checks the documents or the safety of the eggs themselves remains.

"There's no watchdog that’s really out there and there are no solid rules that we can rely on," Levitan said.

Infertile couples and young women preserving their eggs before cancer treatment are sensitive and vulnerable patients that could be taken advantage of, agreed Dr. Matt Gysler of the ISIS Regional Fertility Centre in Mississauga, Ont.

"You can just about offer them any treatment and they will try and therefore I think we have an exceptionally high responsibility."

Legality of buying eggs

When Canada's top court upheld the right of provinces to regulate health care, including fertility clinics, in 2010, it said Ottawa was within its jurisdiction to regulate the payment of fees for egg and sperm donation.

But provisions that were ruled constitutional are not in force because Health Canada hasn't drafted them, Levitan said.

"We're not allowed to pay a fee to a surrogate and we're not allowed to purchase eggs or sperm. But we are allowed to reimburse reasonable out-of-pocket expenses to a surrogate or to donors of those gametes. The expense section has never become law so we don't know if there are any limits on those kinds of expenses."

There is "wiggle room," Levitan said, including no restrictions on paying an egg donor agency to find an egg. "Buyer beware," she advises clients when explaining their liability.

Canadian women buying American human eggs could face criminal charges if the RCMP believes there was a purchase and it happened in Canada.

Whether going online for an egg transaction in the U.S. avoids the Canadian law is unclear because it has never been tested in court.

Sperm vs. eggs

Gysler believes that since it is legal to import sperm from U.S. sperm banks, the same should apply to eggs.

Levitan disagrees with applying sperm banking as a defense. If importing eggs was deemed a Canadian purchase, she believes women could face a maximum 10-year jail sentence and $500,000 fine

Threats of jail time haven't deterred Canadians from purchasing the services of U.S. egg banks.

"We did about 100 eggs to Canada in the last six months," said Diana Thomas, president of the World Egg Bank in Phoenix.

"When I speak to doctors individually they really have no fear about the [Canadian] legislation. They just don't want to all of sudden be used as a test case when it hits the press," said Thomas, who lived in Canada for 18 years.