Lorne Brown:
By listening to the Conscious Fertility Podcast, you agree to not use this podcast as medical advice to treat any medical condition in either yourself or others. Consult your own physician or healthcare provider for any medical issues that you may be having. This entire disclaimer also applies to any guest or contributors to the podcast. Welcome to Conscious Fertility, the show that listens to all of your fertility questions so that you can move from fear and suffering to peace of mind and joy. My name is Lorne Brown. I’m a doctor of traditional Chinese medicine and a clinical hypnotherapist. I’m on a mission to explore all the paths to peak fertility and joyful living. It’s time to learn how to be and receive so that you can create life on purpose.
Today I want to welcome to the Conscious Fertility Podcast, Sara Cone, who is a fertility lawyer, and we got to connect and chat a bit at the Canadian Fertility Andrology Society, which was in Vancouver BC in 20 25, 20 24. I’m already ahead of myself in 2024 when we’re recording this, and we just thought it would be interesting for our listeners to learn a little more about the legalities around surrogacy donation. What happens to the embryos, what happened to the kids that are born to donation? So we’re going to have this conversation today. I would like to introduce you first formally to Sara. So Sara Cohen. She’s a fertility lawyer based in Toronto, Ontario with clients that are across and beyond the country of Canada. She regularly acts for intended parents, surrogates donors, chio banks, hospitals, distributors, and fertility clinics on a wide range of fertility law issues. She sits on the ethics committee of one of Canada’s preeminent clinics and is the VP of the Canadian Fertility and Andrology Society. She’s the past president of Fertility Matters Canada, a former adjunct professor of reproductive law at Osgood Hall Law School and a fellow of the Academy of Adoption Assistive Reproduction attorneys. Sara has given expert testimony on third party reproduction and legal parentage issues and has been invited by the Ontario Canadian Irish governments to provide expert opinions on various fertility and parentage related legislation. So with that background, I thought you would be a great person Sara to sit down with and talk legalese when it comes to fertility. So thanks for coming to the Conscious Fertility Podcast.

Sara Cohen:
Thanks so much for having me. I’m thrilled to be here.

Lorne Brown:
So for somebody who’s in law, not most lawyers don’t specialize in fertility, so I’m just curious, how did you come to specialize in this area when it comes to law?

Sara Cohen:
So if you talk to me in person, you are going to hear me go on and on about how passionate I am about what I do and truly how grateful I am to be a fertility lawyer. And like you said, there’s really few of us. It’s a niche area. Most people I talk to including lawyers, don’t really know what it is to be a fertility law lawyer, so I have to explain it to them. The way I to this is, I guess it’s kind of I would say faded. This is something that always called to me. So when I was much younger, I worked doing some research at one of the fertility clinics in Toronto and really was just like inserting information data at the time. Then I spent a summer at Princeton University’s Office of Population Research helping one of the PhD students with some of their research on contraceptive technology, and this is what I always wanted to do.
So then when I was in law school, new legislation came in about the assisted Human Production Act and I really didn’t like this legislation and had a lot to say about it. So I took every single course I could possibly find on this topic including sexuality and the law, health law, legal, governance, et cetera, and wrote every paper about this. And then I kind of guess chickened out. I went to a normal law job then though I had my first child after our own struggles, which I have to say are not even comparable to the terrible struggles a lot of my clients have gone through. But I knew that if I was going to keep on working and be away from my guy who is one of the loves of my life, I needed to do something really meaningful with my life and this is what had always been my calling. This is what I’d always wanted to do. I just kind of too scared to do it. So I was on maternity leave and someone looked at me and said, are you going back to Bay Street? When are you going back to work? I looked at them and I said, Nope, I’m going to be a fertility lawyer. I hadn’t actually decided, but then once I said it, I felt like, oh my goodness, I’m now committed. That was 14 and a half years ago and here I am.

Lorne Brown:
We never know when people are listening to this. So that would’ve been 2010, 2009 ish,

Sara Cohen:
20 10, 20 10,

Lorne Brown:
Okay.

Sara Cohen:
Once you kind of, it’s like I put it out into the universe, I made a commitment
And not only now did I have no choice, but now in a good way this is what I’m going to do. And I have to say that I always knew I wanted to be a mom. This was something that was really important to me. Even before I got married, I sat my then fiance down and said, look, I’m going to be a parent no matter what. No matter how that comes to us, whether it’s easy, it’s difficult, it’s through egg donations, sperm donation, courtesy or adoption. I’m going to be a mom, so I need to know you’re on board with that. And the idea of people really struggling to be a parent speaks to me so deeply that it’s an honor to do this. So that’s my really long-winded way of telling you how I got to do on this, which to some extent is I just did it.

Lorne Brown:
Well, when you make that commitment, it’s interesting how things just start to get aligned and support you on this journey. And so like you said, once you committed and we’re fortunate you have because there’s not a lot of lawyers practicing in this area, and I’m fortunate that we’ve met that now I get to ask questions that I’m often asked, which are outside of my lane, as in I’m not an expertise in law expert in law. So I’m glad we can have this conversation and if anything I ask you is like can’t answer that, that’s incriminating, then just tell me and we’ll move on. But I’m just going to share questions I get or stories I know, and I just would love some of your legal knowledge behind that. And like I said, we’re going to talk about the donation side and surrogacy. The first one, I want to share a story with you and I want to know what were the rules then and how are the rules now at the time of this recording?
And I guess it’s fair to say we should say that we’re recording this late 2024 and you got to consult somebody like Sara because laws change. So please do consult with somebody like Sara because the laws changed. So as of today though, so I remember I’ve been doing this for 24 years at the time of this recording. I remember over a decade ago, a same sex couple came and they brought their guy friend with them and their plan was that they’re going to create a family and he was going to be their known donor. And at that time they were told they couldn’t do it. These two women could not use him because he’s a known donor without going through other legal requirements they had to go through. So they set up another appointment and a month later they went back to the clinic and one of the women and the guy were there together and they said, we broke up the two women and this is now my partner not married and we’re going to have kids. And they’re like, great, let’s go for it. So what was the rules then, and what are the rules now that they weren’t allowed to use a known donor or I guess the question is can people use known donors and did they just tell me a story that makes no sense from what you know or did that actually used to happen?

Sara Cohen:
No, I wish I could say that didn’t happen, but that used to happen quite a bit and I mean that’s just awful. Of course we should be able to proudly be whatever our family is to us. It’s not that a known donor has ever been illegal. You’ve always been able to use a known donor in Canada. People have been doing it since time in memorial probably because you don’t always need a clinic to do a no donor. We can do it at home. We call it Turkey based or method or whatever you want to call it. But up until I think it’s 2020, there were what was called the semen regulations, which were actually part of the Food and Drug Act, which I always find funny. But basically they required six months of a clinic quarantining the sperm from a known donor prior to being allowed to use it to inseminate someone who wasn’t their sexual partner.
And this was actually quite expensive. So what ended up happening in 2020 is Health Canada came at with regulations that are now called the safety of sperm and over regulations. And basically there is a way which isn’t all that difficult to get around the requirement of quarantining that donor sperm for six months when you’re using a known donor. And I mean I think the argument behind it has always been like heterosexual people could go into a bar, have a one night stand and choose to take the risk of whether it’s STDs, et cetera. If these people are aware of any risk, why can’t they also choose to say, yeah, we get it and we want to go ahead and use this donor. So it’s become a lot easier now to engage in known donation at a clinic. And that’s one side of the law that you’re asking about, which is the federal part.
So same across Canada. And that part of the law really is about in this situation what a clinic is allowed to do. But then the question of who is a parent through sperm donation is different province by province. And really up until first British Columbia where you are, and then Ontario where I am, it was dangerous potentially to use a known sperm donor because our laws were really old fashioned. The idea was you always know who a mom is because the person who carries the baby is obviously the mom. And the dad though has always been like, we assume it’s her partner, but genetic testing could get around it in case she’d gone outside of her marriage from an old fashioned perspective. So that genetic link from a sperm, a person giving sperm to the babies, what at the end of the day made someone the parent.
And this was a problem because surprise, surprise, it was the sperm donors who came back and sometimes said, I actually want that kid. I didn’t think I did, but I want to be a parent too. And then it would put the two mom family in a really precarious position. So there’s case law and then statutory change in British Columbia and then Ontario and other places throughout Canada that make it so much safer. Now you can use a known sperm donor because it’s very clear that a donor is not apparent. You have to take other steps to prove they’re a donor and not also apparent because Canada’s so cool that a lot of provinces allow two parent families, three parent families, four parent families. We’ve got to be clear who’s a donor and who’s a parent, but it’s really quite safe right now if you do everything properly. So the entire framework has really moved forward both federally what a clinic can and can’t do and provincially that a donor isn’t apparent. So it’s really quite safe now.

Lorne Brown:
And the follow-up question then on that theme that I have had is how does this work? That was the concern is can if we have a sperm donor, whether it’s anonymous or a known donor, first part is does he have claims that choose how to raise a child? He is a parent, and then from the child’s respect or the child reaches an age and most people get curious and they want to know their history. Where did I come from all that? And then the child wants to know who was my biological father. So what’s the laws around that? And I’m going to throw one more scenario in here where this may be why you want to speak to a lawyer or there’s certain procedures to go through to make sure it’s clear who’s the parent, who’s not, what happens if a same sex couple female couple find a friend and the term they do insemination at home Turkey based your method.
And I apologize if that’s offensive to people we were talking about, that’s the slang term that is often used, but it’s when you take the sperm and you get the wrench from a pharmacy and you inseminate, you insert it. So what would happen is they don’t go to fertility clinic. Two women have a really good friend, he says, happy to give you my sperm. So he gives them a sample of the house, they take the sperm and they disseminate one or both themselves and they have a child. Is that man that donated his sperm? Is he a parent? Is he not a parent? Since he didn’t go through any lawyers, he didn’t go through a clinic. So there’s couple of levels of that question. Lots of

Sara Cohen:
No, it’s okay. So one thing is I just want to make sure those women who were caring, they’re not surrogates. So a surrogate is when it’s

Lorne Brown:
Not, did I use the word word surrogate?

Sara Cohen:
Yeah, by accident.

Lorne Brown:
Oh, I apologize. I didn’t realize that I used the word surrogate. Yeah, no. So two women, they’re a couple and they may want to carry together at the same time, so they both inseminate, so they’re going to be pregnant at the same time or just one gets inseminated in this. I did not mean to use the term sir, if that has a whole other meaning and we are going to go there at some point during this interview,

Sara Cohen:
No problem. There’s just all these terms that sometimes are confusing. So I wanted to make sure we’re really clear. So there are a lot of layers to that question, and I think I’m going to start at the end because it’s just most live to me right now. So as I was kind of mentioning before the question of whether this gentleman who’s provided his sperm, not through sexual intercourse but otherwise, and jumping in my own, you can do sperm donation through sexual intercourse in Ontario. If you have an agreement in place prior and I can see by her face, that’s a little surprising. And for a lot of people that’s very surprising. Regardless, let’s just go back to what I refer to as at home.

Lorne Brown:
I’m thinking of somebody that has a friend, she’s single, wants to have a baby, he’s having sex with her to help her have a baby, but I don’t know if he’s thought the future what in 5, 10, 15, 20 years of what the repercussions are. That’s all I was just thinking instant gratification. Sure, I’ll help. You’ll have sex with you. I’m not realizing, so please tell us about that as well. But I want to go with what is the most common. I’m sure that does happen.

Sara Cohen:
It happens.

Lorne Brown:
The most common is where they get a male friend to donate their sperm in a female, same sex couple

Sara Cohen:
Happens all the time. And it’s not only with same sex couple, it could be a single woman, it could be a husband and wife

Lorne Brown:
Who

Sara Cohen:
Are heterosexual heteronormative, but unfortunately the quality of the sperm is lacking, et cetera. So the question of if that donor is apparent is really different province by province, but kind of in relation to what we were talking about before, it is so much safer. Now, safer. Do you need a contract? I’m a lawyer, I buy life insurance. I have a will I think would be crazy not to have a contract, but is there a legal requirement to do so? As long as it’s not through sexual intercourse, no, there’s not a legal requirement to do so. There’s also not a legal requirement to have a will or life insurance, et cetera. So it’s not in my best, it’s not what I would recommend, but that’s not legally required. Most clinics, so if you do it in a clinic, almost all the clinics are going to require you to do one.
But if you do it at home, no one’s there to stop you. You can do as you will. It is possible in some provinces to make him also apparent if that was the intention prior to conception. And then I think most of the people I see, they only mean for the other two to be the parents and not him. So we want to make that clear. And like I was saying, most provinces now it’s really clear a donor is not apparent. So as long as we’ve made that clear to begin with and it’s not through sexual intercourse, that’s doable Depending on the province. As you were mentioning, that changes sometimes. And for example, new Brunswick, the law is not great, whereas Ontario, British Columbia, that’s pretty awesome. So you got to make sure everything’s in place. You are also touching on a topic that’s really near and dear to my heart.
Your question that I understood it to be was what about this child? They want information, they grow up or maybe even when they’re young, the donor conceived person, do they want information about the donor? And the question about what is available to them also really differs. So the first example you were giving was an anonymous sperm donation. An anonymous sperm donation only happens through a sperm bank. So Repromed recently rebranded, so I think it’s Origins sperm Bank, that’s our only national one in Canada, and Canadians import like 95% of our sperm bank sperm from the United States. It is not illegal. So it’s legal to use anonymously donated sperm. We live in a time where it, can

Lorne Brown:
You say that again?

Sara Cohen:
It is legal,

Lorne Brown:
It’s it’s allowed

Sara Cohen:
In Canada to use anonymously donated sperm. We live in a time of 23 and me ancestry.com, et cetera, et cetera. So how far that anonymity can be protected is really another question. And as an aside, we did have a case in British Columbia, which is where you are, where a donor conceived person, Olivia Pratten sued the government and said, I want to know who this donor is. At first instance, she was successful in British Columbia and no anonymous donation could happen for a while, but then it was overturned at the British Columbia Court of Appeal. But if you use anonymously donated sperm through a sperm bank, you have no rights to any information. So you as the parent have no rights to any identifying information I should say about the donor. From my perspective, the bigger concern is either does the donor conceive person, so they don’t have any rights to this information and we know that although some donor conceived people really like it’s not a big deal to them who the donor is, there’s others who really, really care and to not have access to that information could be really problematic.
There are something called open ID or open identification donation, which the idea is that the donation through a sperm bank is anonymous until the donor conceived person reaches the age of majority and then the identifying information is made available to the donor conceived person if they seek it out. The problem with that is that information is not held by any governmental body or regulatory body. It’s held by the sperm bank and what happens if the sperm bank closes, et cetera, loses track of this person, that information is no longer available to the donor conceived person. So from my perspective, using a known donor is the way to go. So if I could encourage everybody to be involved in donation, I would. And that’s really a personal preference on my part. And the reason is the law now is so strong that we can make it easily that a sperm donor’s not apparent.
Since that law changed. It was in Ontario, at least January 1st, 2017, we do not have sperm donors coming after these children. But to have the identifying information of the donor and to be able to contractually obligate him to share updating information about his health, his siblings, his parents, his children, if he donates in the future to someone else to be able to track any of his kids to make sure his kids aren’t having sexual intercourse with your kids, I think that’s really wise. The donor conceived person never want that information, but as a parent, I would want to be the repository of that information for my child if they want it. You can custom that and get which information you’re legally entitled to when it’s a known donor. If you’re working with an anonymous or even open ID bank, you can’t customize what information you’re entitled to.
It’s whatever information the sperm bank has, and by the way, they’re going to write in the contract with you things like, oh, by the way, we didn’t go backwards and check the information he provided to us. So he told us he graduated from Princeton, he’s mentally healthy, et cetera. But really we had a case a few years ago where imported sperm, this person did not go to graduate from any university and have schizophrenia because no one, they don’t have an obligation. They legally can do whatever they want to make it that when you’re purchasing sperm from the sperm bank, you are signing that you understand that the sperm bank’s not going back to verify this information from the donor. So for me, that’s just not the way I would do it. Is it legal? A hundred percent. A hundred

Lorne Brown:
Percent. I realize that there’s a bit of an honor system when people fill out the information, there is no obligation for the company to fact check the sperm donor.

Sara Cohen:
You got it.

Lorne Brown:
What about the other way of the child wanting financial support or wanting this donor to be in his life? Does this child have any rights?

Sara Cohen:
No. So if they’re a donor, the donor doesn’t have rights of access to the child. They can’t say you can’t move to Australia, they can’t say this child must go to parochial school, anything like that. But the parents also, we can’t sue for child support. The interesting thing though is child support is technically the right of the child, not the parents, but by making it clear that a donor is not a parent and the child’s not entitled to support from that donor

Lorne Brown:
And then from egg donation from what we just, is there any difference in laws from what we just talked about or is it the same rules about who’s the parent, et cetera, and the child could go to the parent? Is it the same as with sperm donor?

Sara Cohen:
It’s more or less the same other than it was never as dangerous because the original laws were written prior to IVF fertility treatments that happened in the clinic, et cetera. So there was never the same assumption that a DNA connection between an egg donor and a child made them the parents. But it’s the same thing and surprisingly enough, it was never egg donors that went after being a parent of the child. It was only the sperm donors. So it’s like I always find that blows my mind considering how much harder it is to retrieve an egg than it is to retrieve sperm.

Lorne Brown:
Let’s move to, well on the topic of a donation, and Ken, can you share a little bit about can the person donating the egg or the sperm, do they get compensated, do they get paid of any manner?

Sara Cohen:
So in Canada it is punishable by up to 10 years in jail and or $500,000 to basically to compensate a donor or to pay someone acting on behalf of the donor, which to my mind is wildly disproportionate, 10 years in jail and or $500,000, which is probably why no parents have ever been charged. However, since that law came into effect, we used to have something like 20 sperm banks across Canada. Now we only have one national sperm bank and from year to year they have like 20, 25 some low number donors. And the truth is, even though again we have this idea that it’s not so hard to be a sperm donor, although you do have to attend at the clinic a whole bunch of times. You do have to, it’s not as easy as we think it is. But people stopped engaging in sperm donation to the same set in the same way when it became prohibited to compensate a donor even like $150, $200, to be clear, it is perfectly permissible to reimburse a donor for their expenses in card as a result of the donation.
And Health Canada in I think it was 2020, provided basically a list of categories for expenses for which we’re allowed to reimburse a donor. So the donor has to give receipts and only then can they be reimbursed for what they’ve spent. The other part though that people find fascinating is they’ll say to me, well my friend bought sperm through this sperm bank or an egg through an egg bank. And that’s actually legal because it’s a loophole in the law. The law is that you’re not allowed to purchase eggs or sperm from a donor or a person acting on behalf of a donor, but say you’re in the United States, the sperm bank or egg bank, they’ve already purchased the egg or sperm from the donor, now they own that egg or sperm. So when the Canadian intended parent is coming forward and saying, well now I want to buy this egg or sperm, they’re purchasing it, but not from the donor and not from a person acting on behalf of a donor, they’re acting on their own behalf. So because of that, we import like 95% of our sperm to Canada from the United States. By the way, we have no laws of how many times you can use that same sperm or X. So we are using a lot of the time the same gametes again and again and again and having kids who are, we know there’s going to be a lot of donor conceived people who are related to each other, which is dangerous because we’re not tracking and we don’t have a way of tracking who’s related to who.

Lorne Brown:
I want to unpack this a bit. First of all, the last part you talked about is because of the regulations that are set up, there is a risk that half siblings could marry.

Sara Cohen:
Yes, there is a risk.

Lorne Brown:
Yeah, I really like there’s something about you I like, right?

Speaker 3:
You feel like

Sara Cohen:
Home.

Lorne Brown:
Yeah, exactly right. Of course we’re on the Conscious Fertility podcast. I’m already thinking of the existential attraction, right?

Sara Cohen:
An anthropology class at U of T, we learned about that. That actually in many ways we’re attracted to people without realizing it subconsciously who look like us.

Lorne Brown:
Yeah, no, that’s the whole point of when I was saying we’re on the Conscious Facility podcast, it’s on a subconscious level, right? There’s that attraction that’s interesting and we’ll see how that plays out over the next little while. The part I wanted to unpack though is just so in Canada you cannot pay directly the sperm donor or egg donor in Canada, but you can pay them reimbursements and Health Canada gives you a list of reimbursements. I think it’s somewhat of a generous list you would call it,
But it’s not something people would do so much for the money, it’s more of an altruistic thing if it’s in Canada based on they’re just getting really reimbursed. However, in the states, people can get paid to donate egg and sperm. So it’s something that they can do to as a financial reward. And then the loophole is the Canadians will buy from the sperm bank or egg bank, they’ll pay for it. So now they’ll pay well beyond reimbursement expenses to get those eggs and sperms. So that’s the loophole that somebody in the states is getting paid to donate. Question, can a Canadian go to the states and donate their egg and sperm and get compensated favorably in the states then

Sara Cohen:
I think they could because the prohibition is not on selling, it’s on purchasing. So I think they could do so, and I think they do actually

Lorne Brown:
Not a loophole. I’m just saying if you find somebody, hey, if we do this here in Canada, I can only give you your reimbursed expenses. But if you go to the states,

Sara Cohen:
But if it’s a Canadian parent, we don’t want them making the payment still they could do it outside of Canada and make that payment et cetera. But if they’ve got the Canadian donor, none of the payments should happen in Canada. So a Canadian donor, anyone internationally, a Canadian donor going to the United States to donate her ova for example. I think if you had a US parent buying her ova, sure, no problem. And the Canadian parent could do it to make a long story short, if it was now through a bank, but if it wasn’t through a bank, the Canadian should still pay from outside of Canada, in my opinion on a very, very strict and conservative reading of the legislation.

Lorne Brown:
I don’t know if we missed anything on the egg and sperm donation, but if I’ll at the end I’ll ask you some of the common things that people should be aware of. I wanted to move to surrogacy. So can you explain a little bit about what is surrogacy and then again, can you share some of the things that you want people to be aware of? Yeah, let’s just go through explaining what it is and then what are some of the legal things that people want to be aware of.

Sara Cohen:
So from my perspective, surrogacy, just like gat donation is this really beautiful thing where people are coming together collaboratively to help someone build their family. So surrogacy though is when a person who doesn’t intend to be a parent of that child carries the baby on behalf of someone else. And most surrogacy, when you hear that word, we’re really talking gestational surrogacy. Gestational surrogacy is where the person carrying the baby has no genetic relationship to the child. So they’re using either the parent’s egg or a donor egg, but not their own egg. Traditional surrogacy is when the person carrying the baby is genetically related to the baby but doesn’t intend to be a parent of the baby, and that happens quite a bit less. So the law about gestational surrogacy or traditional surrogacy is actually also altruistic. So can’t compensate surrogate, but you can reimburse her for her expenses.
We have a different list from Health Canada about what we can reimburse her for and again, she has to provide receipts. I would say, again, in many ways Health Canada did a great job on these regulations. I was really worried they would be a little bit less understanding of what should be reimbursed in my mind. But it’s quite generous and I think the idea here in Canada isn’t like be super strict and have just bare bones, but let’s give her a really comfortable, healthy, fulfilling pregnancy, which is obviously what we want for people. So we can reimburse quite a bit. But just like egg and sperm donation, the question of who is a parent really varies for sury province by province. Best laws continue to be in British Columbia and Ontario. The next is probably like Manitoba, Saskatchewan and PEI. The one where absolutely is a no-fly zone right now is Quebec, please, please, please do not have your baby born through service in the province of Quebec.
I know some Quebec lawyers might feel differently if it’s qua intended parents, but really subject to that please do not do it. And then you also need to be aware that there’s some provinces like Alberta where there must be a genetic connection between the parents and the child prior to engaging in surrogacy. Otherwise you’d have to adopt your baby and you can’t always adopt your baby and you don’t want to have to adopt your baby. But there’s places like Ontario and BC where you don’t need to have a genetic connection to the child. There’s also places like where we can have more than two parents, one parent, two parents, three parents, four parents. So province by province is completely different in all provinces. You need to have a legal agreement between the parents and the surrogate signed everything before the embryo transfer or she’s just the mom and that’s all there is to it. But even if we have that done properly and she has independent legal advice, which means her own lawyer, even when we have that done completely properly at the moment that baby is born, the surrogate is still technically the legal mom of the baby even though she has no genetic connection to the baby. And there’s another legal process and some problems is super fast and easy and some problems is more complicated to make her not the legal parent and only the intended parents, the legal parent, get them on the birth certificate and not her.

Lorne Brown:
Alright, we got to unpack that one. And this one is again, another seeing the beauty of this because what I get to witness in my practice is the friendship that I usually see with the intended parents and the surrogate. And a lot of them I don’t think knew each other before their journey, but somehow they’ve come together and it is quite amazing to watch this So tangent on this, when you say cover expenses, so when I often see the surrogate come in to my clinic for the acupuncture, low level laser therapy and then we go onsite at olive and we do acupuncture before and after and it’s being done on the surrogate. So then most likely those expenses are being reimbursed by the intended parents then because, and then we’ve also seen some known sperm donors come in and get our antioxidant therapy and get acupuncture in the one to three months before so that sperm donor would get reimbursed in.
Okay, so those would be reimbursed expenses. The surrogacy part where I want to know is, okay, every province is different. Is there a loophole? Okay, you can do your surrogacy in Alberta but make sure you birth in BC or so how do they without having to adopt your child. So can you go through this again? It sounded like I thought it was a little bit in Canada easier that you got your contract, that’s your surrogate, the baby’s born and the intended parents are the legal parents. But I might have heard this wrong, but I got to a sense that it ain’t that

Sara Cohen:
Simple. Okay, so in practice it really is super simple.

Lorne Brown:
Okay, good.

Sara Cohen:
Depending on where the baby’s born, we have to the best of my knowledge, never had a gestational surrogate in Canada try to keep the baby. And the good news of that is we do psychological assessments in advance, but the good news of that is it just doesn’t really happen. The bad news is I don’t have case law for you to tell you if this happened then this is what the court would decide. So in some places, like you’re talking to me from BC and in BC it’s super simple to make the intended parents, the legal parents after the baby’s born and not the surrogate. In Ontario where I’m speaking to you from, it’s super simple too, although a little bit worse than BC because I can only do it after seven days after the baby’s born. So IE eight day after the baby’s born where I can just register the birth and need the surrogate to sign off.
Though BC is simpler even. But there’s some provinces like Alberta for example, where I have no choice but to get a court order first that the surrogate is not apparent that the intended parents are the parents. And only then once I have that court order can the intended parents on the birth certificate and not the surrogate. So every province looks a little bit different. Now you made a really interesting point about like, well say I did surrogacy with an Alberta surrogate, say I’m a single mom and I can’t carry, and also my ova aren’t, whether it’s sufficient quality, et cetera, I need an egg donor and I can’t carry, but I found this amazing woman who’s offered to do this for me, this is awesome. But I didn’t realize that if this baby’s born in Alberta, I can’t become the parent through surrogacy because I have no genetic connection.
So one, I hope that doesn’t happen in advance, but if it did, we would really ask the surrogate, could you please, can we move you to British Columbia, Ontario, one of the provinces where you don’t need a genetic connection and make sure the baby’s born there. So that jurisdiction makes you the parent and not the surrogate. I mean that stinks when that happens, but I’ve seen it done a few times. We don’t look for it often and it also becomes expensive because that cost should be on the intended parents and not on the surrogate. The idea is, I mean you might have a sister, a friend, a cousin, a friend of a friend’s friend, et cetera, who’s caring for you. And that happens a lot. But it also happens a lot like what you were saying, which is like people come together and it’s this beautiful, beautiful thing saying I’m going to carry for you. And the idea there is usually like I’m so happy to do this for you, but it can’t cost my family anything. I’m picking up and moving over and you have to move early enough to make sure the baby’s going to be born in the right place out a lot. If not, it’ll be quite expensive. But yeah, we do it sometimes

Lorne Brown:
There’s these more and more nice long stay hotels where I’m in BC have opened up and so I see another use for ’em. This is where people, when they have floods and they have to move out of their house for three months, they go or they’re coming to work these hotels, they have have kitchens and everything. Now I see another purpose for these
Hotels in BC for these surrogates. Now we’re going to talk about a couple, make a lot of embryos if they’re fortunate enough and they don’t need to use them all because they’ve had their children and they’re not going to have more. And this has come up because this has happened recently where the couple were having a disagreement about doing IVF because he was concerned about what would happen to the embryos. And so that’s the question I want to ask you. So if a couple makes embryos, they were worried that the clinic would throw them out and that’s not the case. Clinics cannot discard any embryos without the permission of, and I’m asking you this question, that’s my assumption. That’s what I understood. But I have you here, so I ask this once you have embryos in, they’re frozen and they’re in the IVF clinic, what’s the ruling around that? Can the clinic discard them without the parents’ permission?

Sara Cohen:
I heard one. So I mean technically my legal answer would be subject to the fact that we don’t have a case exactly on point. My best guess would be it depends what your contract with your clinic says. So the clinic’s basically going to be like, most clinics are going to be like, we are storing this for you. You owe us storage fees once a year. If you don’t pay, we will try to contact you. This method, that method, this method, if you still don’t pay by signing this and storing your embryos at our clinic, you’re agreeing that we’re allowed to destroy them. And that’s typically what I see the agreements look like between the patients and the clinic. Will a clinic take that step and actually destroy an embryo? I haven’t heard of it happening, but could it, I think legally it could is my guess.

Lorne Brown:
But if you’re paying because to get a bird’s eye view, remember there’s only so much space and so they’re having tanks where they’re keeping these frozen embryos. And so every patient, they can’t keep indefinitely with the space they have unless they get more and more space or new ways to maintain these embryos. So if you’re paying, the clinics are meant to keep your embryos and if you don’t pay, there is risk that they could discard them if you’re not paying. But like you say, that doesn’t seem to be the issue. But you wouldn’t want to risk that The other,

Sara Cohen:
I’m not sure, I definitely would pay, but I don’t think, I would be surprised if a clinic wrote to a patient and said, we’re out of room. So even if you are going to pay, we can’t. No,

Lorne Brown:
I’m saying, I’m saying that if you’re paying, they’ll find, I’m saying if they contact you a year or two years and you haven’t responded, they could could, I did not intend that. And that would be a legal case I think if you were paying and they’re like, we didn’t have room so we discarded your embryo.

Sara Cohen:
No, we didn’t have room, so we discarded. But

Lorne Brown:
Get that out of your head, everybody, they’re not going to do that. That would be a legal case. And just to know the clinics that I see, I mean even when they have abnormal embryos, so they’ve done genetic testing, the patients have to go and sign, they can’t discard, they’re waiting for the patients. There’s a lot of consent and permission. So it seems like there’s a lot of safeguards around that because people are just concerned, whatcha going to do with these embryos?

Sara Cohen:
There’s tons of safeguards around them and different, as you know, different patients feel very differently about the status of embryos, what they mean to them, whether it’s a religious or ethical, moral or just personal feeling. And some people see it as reproductive tissue. So people have feelings all over the place and have different ways on what to do with excess embryos. You could donate them to another person or family to have their children. You could destroy them. Some people do, as you know, there’s different names for at different clinics where they’re transferred to a woman in a way that is not going to result in actual conception, but allowed to kind of exit that way, exit the store and process that way. Some people donate to science research, training, et cetera. So there are options. And some people, honestly, so many people just store them for without end.

Lorne Brown:
I have a story for you just reminding me. Women had gone through multiple fertility treatments, unsuccessful with their own eggs, and then she moved to donor and had a child donor eggs. And her only regret, people hear me say this on the podcast often her only regret was she didn’t do the donor egg sooner. She could have been with her baby that much sooner and then the clinic every year pay. And she had some of her own embryos that hadn’t been working, which is why she moved to donor and they had one embryo left and they asked her what she wanted to do and she didn’t want it to be discarded. So she goes, can we just transfer to me so we can just dissolve that way? They did and it worked. So she got her second baby. But is that not crazy?

Sara Cohen:
That’s amazing.

Lorne Brown:
Crazy good, right?

Sara Cohen:
That’s fabulous.

Lorne Brown:
That’s where we say totally not attached to form outcome. So much so that two weeks or three weeks had gone, she didn’t do her blood test and then she realized her cycle had gone and then so it was,

Sara Cohen:
Oh my gosh, that’s fabulous.

Lorne Brown:
So that’s one of those most beautiful, cool stories. We worked with her throughout her pregnancy, so

Sara Cohen:
Oh, that’s fabulous. I love it.

Lorne Brown:
Alright, lawyer, Sara, I have two more questions I kind of wanted to end with just to kind of see what you wanted to add. One is, in your opinion, I don’t know if I, I’m using that word loosely, I know that means something in law. So in your opinion in quotations, what are some of the most significant legal advancements that have made this process smoother or more accessible for intended parents facing in fertility? What’s happening at this time in age that kind of gets you excited?

Sara Cohen:
There’s a lot going on. So what I do is so cool in gazillion ways. One of them though is that we’re actually heavily influenced by the technological advance advancements and then we have to keep on changing because the law follows. It doesn’t lead that way. It has to evolve with what’s going on. So that’s really cool. And something I’m very passionate about, as you may have noticed, is I actually believe you should not be criminalized for compensating an egg don or a sperm don or a surrogate. I think in trying to ensure that we don’t commodify body parts, for example, or secretions, whatever it is, and not paying a sperm doma, for example, example, $200. We’re no longer doing most of our sperm donation in Canada, so we don’t have these registries with information, but who’s related to who or health information, et cetera. So I get really excited when I start seeing an appetite again for change in that way.
And MP Anthony Hawa, who’s royal is always on board making that change. And he gets me excited whenever I speak to him because he’s really, really helpful about progress there. And then as I’ve been doing this for more and more time, it’s just easier being recognized legally, especially parents through surrogacy. It’s so much easier. But also one of the best things is just the stigma is, I’m not going to say it’s not there at all, but it’s so minimal compared to what it was. And this is good for everyone, including the children who this is their life, this is their story, this is how they came into the world, and we want to celebrate it, not hide it. That’s probably the best

Lorne Brown:
Part. And I’m assuming since most of the sperm and egg donations are coming through Americans, the children don’t have dual citizenship though, right? They’re fully Canadian. That’s how it works

Sara Cohen:
Currently. No, I mean it’s always an interesting question. I haven’t seen anyone actually challenge that, but that’s an interesting

Lorne Brown:
Question. Well, it goes with, they’re not the parents. So just good break in ties there. And then for attended parents who might be overwhelmed by the legal aspects of this reproductive technology, what advice can you offer to help them feel a little bit more empowered and informed as they start this journey?

Sara Cohen:
So there’s a few things. One of them is if you’re involved in third party reproduction, you are going to need a lawyer at some point. So I know I offer free consultations, but I’m sure a bunch of the other fertility lawyers do too. I don’t know who does and doesn’t, but I’d really recommend you speak with a lawyer right at the beginning. And the reason is you don’t want to go partway through something and find out either you did something illegally or we can’t make you the parent, et cetera, et cetera. So this is one of the important pieces of the puzzle that you really need to understand before you get going. So please, please do that. And then in terms of being empowered, it really depends who I’m speaking to. For example, I work with a lot of gay dads and for them, this is the most amazing thing that this is an opportunity for them to have a big AB that really wouldn’t have been available to ’em before.
But sometimes for moms in particular who’ve gone through a lot, this can actually be painful. And I think you need to understand that this, not only is it a collaborative journey with you and a surrogate or whoever else is helping you, but it also has to be a collaborative journey with your lawyer, a psychologist, et cetera. Because we want to get you into the place where you can feel really that this is a thing of beauty and gratitude and coming together. And when you can do that, everything really starts falling into place and we can help you

Lorne Brown:
Lots of preconception. So we see so many people to help optimize the egg and sperm quality and immune receptivity leading into either an egg retrieval or a frozen transfer. And now there’s another thing to bring into it is the legal aspects. So also include that in advance. So I’m really glad to have found you, Sara, and to share you as a resource. And I think I heard that you’re able to get a discovery call in with Sara again that probably has a totally different meaning for the legal people, but to find out if it’s the right fit to have those questions before they fully engage, you have that opportunity where they can have that.

Sara Cohen:
Yeah, my, I can talk about this all day in case you didn’t notice. I love this. I love this work.

Lorne Brown:
So to find Sara, the website I have is fertility law canada.com. Is that the right place to find you? So we’ll put that in show notes and I’ll just say it again. It’s the www.fertilitylawcanada.com. And just as we got ready to do our interview today, it was when you had been appointed the vice president of the Canadian Fertility Andrology Saudi CFAs. So again, congratulations on that

Sara Cohen:
Appointment. Thank you. Thanks so much.

Lorne Brown:
Alright, thank you. And thank you guys for listening to the Conscious Fertility Podcast.

Speaker 3:
If you’re looking for support to grow your family contact Acubalance Wellness Center at Acubalance, they help you reach your peak fertility potential through their integrative approach using low level laser therapy, fertility, acupuncture, and naturopathic medicine. Download the Acubalance Fertility Diet and Dr. Brown’s video for mastering manifestation and clearing subconscious blocks. Go to Acubalance.ca. That’s Acubalance.ca.

Lorne Brown:
Thank you so much for tuning into another episode of Conscious Fertility, the show that helps you receive life on purpose. Please take a moment to subscribe to the show and join the community of women and men on their path to peak fertility and choosing to live consciously on purpose. I would love to continue this conversation with you, so please direct message me on Instagram at Lorne Brown official. That’s Instagram, LorneBrownofficial, or you can visit my websites Lornebrown.com and Acubalance.ca. Until the next episode, stay curious and for a few moments, bring your awareness to your heart center and breathe.