Law Times

PAGE 12 FOCUS November 7, 2011 • Law Times Growing a surrogacy law practice Couples often see positive results despite regulatory gap BY JUDY VAN RHIJN For Law Times D espite the lack of legal regulation of the less con- ventional forms of family planning, lawyers are finding a growing niche helping couples consid- ering in vitro fertilization and surrogacy. The challenge, however, is to keep legal advice in com- pliance with what legislation there is given that much of the Assisted Human Reproduction Act has yet to be proclaimed and is unsupported by regulations or uncon- stitutional. Sherry Levitan was a commercial leasing lawyer when a group of gynecologists who wished to set up the first freestanding fertility clinic in Toronto retained her. In the early 1990s, the same group asked her to draft their con- sent form and speak to every person going through the program who was using a third party. "That was their idea for informed medical consent," she says. Levitan has been practising in the area ever since. She believes she's the only lawyer in Canada who practises only surrogacy and IVF law. In fact, only a handful of lawyers are familiar with the area. Nancy Lam was working as an immigration lawyer when friends confided in her that they were having prob- lems and needed to use assisted human reproduction to have a family. David Goldstein came to fertility law through his personal experience of engaging a surrogate to carry his twin daughters. Since she began, Levitan has seen phenomenal chang- es, mostly in people's attitudes towards fertility problems. She recalls speaking to a Canadian Bar Association con- ference in 1996. "People were so interested, but as soon as I said there was money involved, they literally recoiled back in their seats. People are a lot more accepting and understanding now. There is a lot more openness and empathy." The legislative landscape has changed, too. The government partially proclaimed the Assisted Human whether regulations or further proclamations are pending. "We are in a dark grey zone at present," says Levitan. "It is impossible to give clients any certainty. As you can imagine, the clients are of a certain age. They are not will- ing to wait five years to see what the government does. Time is always of the essence in reproduction." But not everyone is so eager for the government to address the matter. "I know there are lawyers who want no regulation at all," says Goldstein. "But that's not the Canadian way. As a society, we are successful with at least some regulation." Lam is of two minds on the issue of regulations. "I wish when the Supreme Court bit a big chunk out of it they had also said, 'This is Canada's position.' Then the government could enforce the act and guide people through it rather than leaving it as a skeleton. Of course, I also prefer the current situation because it is less regulated and we can interpret it in our own way. "But it's like waiting for the other shoe to drop. 'We are in a dark grey zone at present,' says Sherry Levitan. Reproduction Act in April 2004, but the legislation was on the receiving end of a long challenge by the gov- ernment of Quebec. In December 2010, the Supreme Court found that various parts of it were unconstitution- al. "Very little is left of the act that is valid," says Levitan. "Even sections that were deemed constitutional are not law as they have never been proclaimed." Some matters, such as privacy, access to information, and regulation of fertility clinics, are under provincial au- thority, but there has been little in the way of regulations or guidance. The Ontario Ministry of Health is working on a response to the April 2010 report by the expert panel on infertility and adoption that recommended the develop- ment of a regulatory framework but it's focusing its initial efforts on the big picture of education and research into the issue of infertility. The federal government is reviewing the Supreme Court decision and there's no word yet on We don't know when regulations might come in and say, 'You shouldn't do this.' We're stuck in the posi- tion where we can't put too much in the contract that might raise red flags." As Goldstein points out, the provision against pay- ing consideration to a surrogate or donor is still in force and effect. "As long as I guide my clients in that, I've done my job," he says. However, the section that says that reimbursement of expenses is permissible in accordance with the regu- lations and subject to a licence is problematic, lawyers say. "Section 12 has never been proclaimed," says Levi- tan. "There are no regulations and the sections regarding licences were deemed unconstitutional. No one knows if the federal government will issue special purpose licences or leave things as they are." Goldstein's feeling is that within the next 12 months, Health Canada will put out a list of acceptable expenses. "Now that s. 12 has been solidified by the Supreme Court, See Parents', page 13 Aſter more than 45 collective years of excellence in family law at McCarthy Tétrault LLP, Gerry Sadvari and Stephen Grant are opening their new practice in January, 2012. They will continue as litigation counsel as well as conducting their mediation/arbitration (ADR) practice. Gerry and Stephen are both Fellows of the American College of Trial Lawyers and have been ranked "Highly Recommended" by Lexpert Magazine fiſteen times. Stephen is also a recipient of the Law Society Medal and the editor of the Advocates' Journal. Both have taught and written extensively on family law and have acted as counsel in many leading family law cases. The entire team at McCarthy Tétrault wishes to thank Gerry and Stephen for their years of outstanding service and dedication to our clients and firm. Not only has it been a privilege to work with Gerry and Stephen, it has also been a lot of fun. We wish them well in their new home. www.grantsadvari.com 152 Davenport Road, 2nd 416-238-7899 Gerry Sadvari Stephen Grant Floor, Toronto, ON M5R 1J2 gsadvari@grantsadvari.com sgrant@grantsadvari.com Untitled-2 1 www.lawtimesnews.com 11-10-28 12:31 PM

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