by Sara Cohen, Lawyer
Cancer can take away so many dreams and plans you had for the future. It doesn’t have to take away your ability to build your family.
With the pain and fear that accompanies a cancer diagnosis; your future fertility may not be at the forefront of your mind. However, with modern medical technologies, depending on your circumstances, there may be steps that you can take to preserve and protect your fertility prior to or during your cancer treatment. Your oncologist can assist in determining whether this is an option for you.
One of the many cruelties of cancer is that treatments that may be credited with enabling patients to beat the illness, may destroy their fertility.
Some cancer survivors may be able to conceive naturally. A fertility specialist can assess this likelihood. Cancer survivors whose fertility has been compromised may require the use of one or more methods of assisted reproductive technologies (ARTs) in order to have a child. Female survivors fortunate enough to cryopreserve their ova (or embryos created using their ova), may be able to have biological children either by using in vitro fertilization (I.V.F.) and carrying their own child, or, where necessary, having the embryos transferred to the uterus of a gestational carrier to be carried on behalf of the intended parents. Male survivors fortunate enough to cryopreserve their semen may be able to have biological children using their semen through intra uterine insemination (I.U.I.), I.V.F. or other forms of ARTs.
Some female cancer survivors may need donor eggs to have a child (the same way that some male cancer survivors may require donor sperm to have a child). Eggs donated by a third party are fertilized with sperm to create embryos. Depending on the woman’s ability to carry a pregnancy, the embryos will be transferred to her uterus or to that of a gestational carrier to carry the embryos on behalf of the intended parents.
Fertility Laws in Canada
I frequently hear the myth that surrogacy and egg donation are illegal in Canada. This is simply not true. Altruistic surrogacy and egg donation are completely legal in Canada, although paying a surrogate for her services, or an egg donor for her eggs, is criminalized under the Assisted Human Reproduction Act (along with various other prohibitions). Pursuant to the Act, it is illegal to pay a surrogate or an egg donor in Canada, or to advertise for the payment of a surrogate or an egg donor. Unfortunately, despite what seems to be unanimous criticism of the Act, there remain large, gaping holes in fertility law in Canada (to say the least). Only Quebec, and more recently Alberta, has addressed some of these holes. A fertility lawyer can help you navigate these murky waters.
When do I need a fertility lawyer?
A good rule of thumb is that you need to engage a fertility lawyer as soon as you require a third party to be involved in your reproduction, whether it be in the capacity of an egg donor, sperm donor, embryo donor or surrogate. Actually, where a third party is involved, it is preferable to have two fertility lawyers involved – one to represent you (and your spouse or partner, if any), and one to act on behalf of the donor or surrogate. A fertility lawyer should be contacted as soon as you decide to utilize any form of third party reproductive technology. Not only can a fertility lawyer be a great source of information and knowledge, but the Act and its prohibitions come into play early on in the process by prohibiting, among other things, advertising for the purchase of eggs, sperm or embryos and offering to pay a surrogate mother.
It is advisable to enter into a legal agreement with an egg donor that clarifies everyone’s rights and obligations, whether or not the donor is anonymous. For example, it is important to clarify that the egg donor is giving up any rights that she may have to the child, that she is aware of and assuming the risks involved in the procedure, and that the intended parent(s) indemnify her for financial support for any child born through the use of the donor’s eggs. Parties may consider including other contractual obligations in the contract, such as advising the egg donor if a child is born using her donated eggs, or updating the other parties to the agreement if a child born through the egg donation, the egg donor or any of the egg donor’s children are diagnosed with a disease for which there may be a genetic component.
Surrogacy Arrangement 1
As you can imagine, surrogacy arrangements tend to be more complicated than egg donation agreements. Similar to egg donation agreements, surrogacy agreements clarify the rights and obligations of all parties to the agreement. However, whereas egg donation may be done on an anonymous basis (at least for the time being) and any relationship that does exist between the intended parents and the egg donor is often, although not always, quite minimal, a surrogacy is a partnership between the intended parents and the surrogate that lasts at least through the duration of the pregnancy, if not longer. Intended parents and surrogate mothers ought to clarify the rights and obligations of all parties prior to the embryo transfer. This is an important process so as to avoid future misunderstandings or conflicting expectations. For example, some intended parents may want to be very involved in the pregnancy and attend at any prenatal medical appointments with the surrogate, be present in the delivery room at the time of birth, and demand that the surrogate mother refrain from consuming specific foods and drinks during the pregnancy, but other intended parents may prefer to take a hands off approach. While some surrogate mothers may interpret some of these actions as being over bearing or invasive, other women may find a lack of involvement worrisome or emotionally unsatisfying. If the intended parents and gestational carrier cannot agree about these issues at this preliminary stage, it may be wise to part ways prior to the embryo transfer.
Further, law makes the presumption that the woman who delivers the child is the child’s mother, and the partner or spouse of that woman is presumed to be the child’s father. Accordingly, it is imperative that it be clarified, prior to the transfer of any embryos, that it is the intended parents, and not the surrogate and her spouse or partner, who are the parents of any child born as a result of the surrogacy arrangement. After the child is born, a fertility lawyer can assist the intended parents obtain legal parentage of the child by making an application for a declaration of parentage for the intended parents and a declaration of non-parentage for the surrogate mother and her spouse or partner, if any, or in certain situations, through second parent adoption. Legal parentage is determined by the province in which the child is born.
Modern families no longer look exactly as they did a generation or two ago. Courts in Ontario and other jurisdictions have recognized that biology is not what makes a family. Modern ARTs allow cancer survivors and other people suffering from infertility to build their families where natural conception and childbearing are no longer an option. Cancer takes so much – if you want to build your family, don’t let cancer take that away too.
 For the purposes of this article, “surrogate” refers to a gestational carrier and not a traditional surrogate. A gestational carrier is a woman who carries a child that is not the product of her biological material. A traditional surrogate is a woman who carries a child who was conceived using her ovum. As far as legal parentage is concerned, traditional surrogacy is a risky proposition; therefore, I always recommend that my clients refrain from engaging in traditional surrogacy.