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Freezing as Freedom? A Regulatory Approach to Elective Egg Freezing and Women's Reproductive Autonomy

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Abstract

This article reviews concerns relating to the safety and efficacy surrounding the medical practice and social impacts of the increasingly popular practice of elective egg freezing. It argues that current regulation is inadequate to ensure this technology promotes women's autonomy and to ensure women are receiving safe and high quality reproductive health care. It concludes by identifying three priority areas where specific regulation is required: information collection and disclosure, informed consent and fertility education, and assessment and counselling.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 753
FREEZING AS FREEDOM?
A REGULATORY APPROACH TO ELECTIVE EGG FREEZING
AND WOMENS REPRODUCTIVE AUTONOMY
VANESSA GRUBEN*
This article reviews concerns relating to the safety and efficacy surrounding the medical
practice and social impacts of the increasingly popular practice of elective egg freezing. It
argues that current regulation is inadequate to ensure this technology promotes women’s
autonomy and to ensure women are receiving safe and high quality reproductive health care.
It concludes by identifying three priority areas where specific regulation is required:
information collection and disclosure, informed consent and fertility education, and
assessment and counselling.
TABLE OF CONTENTS
I. INTRODUCTION ............................................. 754
II. ELECTIVE EGG FREEZING: BEATING THE REPRODUCTIVE CLOCK ....... 755
A. HOW DOES ELECTIVE EGG FREEZING WORK? ................. 755
B.HOW MUCH DOES EGG FREEZING COST? .................... 756
III. PROMOTING ELECTIVE EGG FREEZING: REPRODUCTIVE CONTROL
AND REPRODUCTIVE INSURANCE ............................... 756
A. REPRODUCTIVE CONTROL ................................ 757
B. REPRODUCTIVE INSURANCE ............................... 757
C. OTHER ............................................... 758
IV. CONCERNS ABOUT ELECTIVE EGG FREEZING ...................... 759
A. SAFETY AND EFFICACY .................................. 759
B. THE PRACTICE OF EGG FREEZING .......................... 761
C. SOCIAL IMPLICATIONS ................................... 762
V. CURRENT REGULATION OF
ASSISTED HUMAN REPRODUCTION IN ONTARIO .................... 763
A. REGULATION OF REPRODUCTIVE
HEALTH CARE PROFESSIONALS ................................ 763
B. REGULATION OF FERTILITY CLINICS ........................ 765
VI. PROPOSAL: SPECIFIC REGULATION OF ELECTIVE EGG FREEZING ....... 766
A. COLLECTION AND DISCLOSURE OF INFORMATION .............. 767
B. INFORMED CONSENT .................................... 769
C. FERTILITY EDUCATION, ASSESSMENT, AND COUNSELLING ....... 771
D. CREATING AN EXPERT PANEL ON ELECTIVE EGG FREEZING ....... 773
VII. CONCLUSION .............................................. 774
*Associate Professor, Faculty of Law, and a member of the Centre for Health Law, Policy and Ethics, at
the University of Ottawa. The author would like to thank Alicia Czarnowski for the excellent research
assistance and Françoise Moreau-Johnson and Angel Petropanagos for their helpful comments on earlier
drafts.
754 ALBERTA LAW REVIEW (2017) 54:3
I. INTRODUCTION
Egg freezing is the newest technology to revolutionize women’s reproduction. Egg
freezing allows a reproductively healthy woman to extract her eggs and store them for use
at a later date when she may no longer be fertile.1 The market for elective egg freezing has
been growing steadily since 2012 when this new freezing technology was declared to no
longer be experimental.2 Corporate America has also embraced elective egg freezing: Apple,
Facebook, and Citigroup all offer to pay for their female employees to freeze and store their
eggs.3 And most recently, prominent members of the medical community have touted its
virtues. Indeed, the New England Journal of Medicine published an article in late 2015
recommending women in their early 30s be informed of the option of freezing their eggs for
future reproductive use.4 The promotion of elective egg freezing has prompted heated debate
in the media5 and in scholarly articles.6 Yet legal scholars have written relatively little about
the potential role for law in regulating elective egg freezing.7
In this article, I describe the increasingly popular practice of elective egg freezing (also
referred to as social egg freezing) and argue that specific legal regulation of elective egg
freezing is needed. Elective egg freezing has been heavily promoted to women as a way to
“have it all,” despite the fact that the evidence in support of its safety and efficacy is quite
preliminary. The use of this technology will profoundly impact the way we build our
families, as individuals, and as a society. To ensure this technology truly promotes women’s
autonomy, and to ensure women are receiving safe and high-quality reproductive health care,
I argue that greater legal regulation is needed.
In Part II, I provide an overview of how elective egg freezing works and its cost. In Part
III, I explore the promotion of egg freezing as a tool of reproductive control and a form of
reproductive insurance. In Part IV, I review some of the concerns raised regarding elective
egg freezing, including the lack of information on safety and efficacy, gaps in the practice
of egg freezing, and the wider social implications of egg freezing. In Part V, I explore the
1A woman may choose to freeze her eggs for medical reasons, such as where she is about to undergo
chemotherapy treatment that will damage her eggs.
2American Society for Reproductive Medicine & Society for Assisted Reproductive Technology, “Mature
Oocyte Cryopreservation: A Guideline” (2013) 99:1 Fertility & Sterility 37 [ASRM Guidelines].
3Jessica Bennett, “Company-Paid Egg Freezing Will Be the Great Equalizer,” Time (15 October 2014),
online: <time.com/3509930/company-paid-egg-freezing-will-be-the-great-equalizer/>.
4Glenn L Schattman, “Cryopreservation of Oocytes” (2015) 373:18 New Eng J Med 1755 at 1756.
5On the in favour side, see e.g. Marcia C Inhorn, “Women, Consider Freezing Your Eggs,” CNN (9 Ap ril
2013), online: <www.cnn.com/2013/04/09/opinion/inhorn-egg-freezing/>; Sally Satel,The True
Impetus Behind Egg-Freezing,” Forbes (21 October 2014), online: <www.forbes.com/sites/sallysatel/
2014/10/ 21/the-true-impetus-behind-egg-freezing>. On the against side, see e.g. Viv Groskop, “‘Social’
Egg-Freezing is a Hideous Fertility Gamble,” The Guardian (9 February 2016), online: <www.the
guardian.com/commentisfree/2016/feb/09/social-egg-freezing-fertility-infertility-parents-children>;
Lynn M Morgan & Janelle S Taylor, “Egg Freezing: WTF?*” The Feminist Wire (14 April 2013),
online: <www.thefeministwire.com/2013/04/op-ed-egg-freezing-wtf/>.
6In favour, see e.g. Heidi Mertes & Guido Pennings, “Social Egg Freezing: For Better, Not For Worse”
(2011) 23:7 Reproductive BioMedicine Online 824. See also Eli A Rybak & Harry J Lieman, “Egg
Freezing, Procreative Liberty, and ICSI: The Double Standards Confronting Elective Self-Donation of
Oocytes” (2009) 92:5 Fertility & Sterility 1509. Against, see e.g. Gillian M Lockwood, “Social Egg
Freezing: The Prospect of Reproductive ‘Immortality’ or a Dangerous Delusion?” (2011) 23:3
Reproductive BioMedicine Online 334.
7In the US, see e.g. Seema Mohapatra, “Using Egg Freezing to Extend the Biological Clock: Fertility
Insurance or False Hope?” (2014) 8:2 Harvard Law & Policy Rev 381. In the Canadian context, see
Angel Petropanagos et al, “Social Egg Freezing: Risk, Benefits and Other Considerations” (2015) 187:9
CMAJ 666.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 755
current regulation of assisted human reproduction and conclude that it does not adequately
address elective egg freezing. Finally, in Part VI, I recommend three priority areas where
specific regulation of elective egg freezing is required: information collection and disclosure,
informed consent and fertility education, and assessment and counselling. I also recommend
the creation of an expert panel with a mandate to examine the practice of elective egg
freezing in its broader social context and make recommendations regarding possible further
regulation of elective egg freezing and associated areas such as employee benefit policies.
II. ELECTIVE EGG FREEZING:
BEATING THE REPRODUCTIVE CLOCK
More and more women are freezing their eggs to combat reproductive aging. Elective egg
freezing addresses the reality that as a woman ages, fertility declines precipitously. Fertility
begins to decline significantly after 35 years of age.8 This is commonly referred to as the
fertility cliff.9 The fertility cliff exists not because of the age of a woman’s uterus but rather
the age of her eggs.10 If a woman freezes her eggs when she is young, then she may be able
to use them at a later age, increasing her chance of pregnancy.
A. HOW DOES ELECTIVE EGG FREEZING WORK?
Elective egg freezing is a multi-step process. A woman who is interested in freezing her
eggs will first undergo a personalized fertility assessment. This involves measuring a
woman’s antimullerian hormone levels or determining the number of early-stage developing
follicles by way of ultrasound. This assessment is intended to assist a woman in deciding
whether she should freeze her eggs and provides an indication of the number of eggs that
might be retrieved following ovarian stimulation.
The woman then begins the egg retrieval process. First is ovarian stimulation, where a
woman injects herself with medication to stimulate her ovaries to produce more than the
usual one egg per cycle. Once the ideal number of eggs has been produced, they are retrieved
transvaginally by way of a surgical procedure. The eggs are then frozen or vitrified. This new
technique of vitrification, or “rapid freezing,” involves exposing eggs to higher
concentrations of cryoprotectants for a shorter duration, followed by ultra-rapid cooling.11
Should a woman decide to use her frozen eggs later in the hopes of creating a baby, the
eggs will be thawed and then fertilized with sperm using intra-cytoplasmic sperm injection
(ICSI).12 Any resulting embryos will be used in a cycle of in vitro fertilization (IVF).
Although this “rapid freezing” technique is still relatively new, there is some early data on
8Federation CECOS, D Schwartz & MJ Mayaux, “Female Fecundity as a Function of Age: Results of
Artificial Insemination in 2193 Nulliparous Women with Azoospermic Husbands” (1982) 306:7 New
Eng J Med 404.
9Linda J Heffner, “Advanced Maternal Age: How Old Is Too Old?” (2004) 351:19 New Eng J Med 1927.
10 Daniel Navot et al, “Age-Related Decline in Female Fertility is Not Due to Diminished Capacity of the
Uterus to Sustain Embryo Implantation” (1994) 61:1 Fertility & Sterility 97.
11 Demián Glujovsky et al, “Vitrification Versus Slow Freezing for Women Undergoing Oocyte
Cryopreservation” (2014) 9 Cochrane Database Systematic Reviews CD010047 at 4, 23.
12 The American Society of Reproductive Medicine has recommended that ICSI (where sperm is injected
directly into the egg) be used to fertilize the egg because of the changes that happen in the egg’s
protective shell because of the freezing process: ASRM Guidelines, supra note 2 at 38.
756 ALBERTA LAW REVIEW (2017) 54:3
the chance of a live birth using this technique. This data reveals that the success rate is highly
dependent on the age of the eggs. A recent meta-analysis demonstrated that the estimated live
birth rate associated with six vitrified warmed eggs was 31.3 percent among women at 25
years of age.13 This is roughly comparable to the success rates using fresh eggs.14 By
contrast, the live birth rate for women at 40 years of age was 13.4 percent.15 Thus, at first
blush, egg freezing appears to be a viable option for women who want to bear children later
in life. However, as is discussed later, much about elective egg freezing is still unknown.
B. HOW MUCH DOES EGG FREEZING COST?
The cost of egg freezing is staggering. In Canada, a cycle of stimulation and retrieval
ranges from $3,500 to $5,850, plus the cost of the fertility drugs (approximately $3500).16
Egg storage fees are approximately $250 per year. The cost of IVF and ICSI when a woman
decides to use the eggs ranges from $3,000 to $4,000. Based on these figures, the total cost
for a woman who freezes her eggs when she is 30 and uses them to conceive one child when
she is 40, would be approximately $36,500.17
Like other reproductive technologies, elective egg freezing is highly lucrative for the
fertility industry.18 Elective egg banking represents a new (and potentially significant)
market: young fertile women. And corporations are eagerly participating in this market.
Many corporations, such as Facebook and Apple, have benefit plans that pay for their female
employees to freeze their eggs.19 For women whose companies do not pay and who cannot
afford these staggering fees, some companies like EggBanxx offer financial plans to cover
the cost of egg freezing and storage.20
III. PROMOTING ELECTIVE EGG FREEZING:
REPRODUCTIVE CONTROL AND REPRODUCTIVE INSURANCE
There has been a barrage of positive messages about elective egg freezing. These slogans
originate from a variety of sources, including the fertility industry, the media, scholars, and
commentators. The promotion of elective egg freezing focuses on two main messages: it
offers reproductive control, and it is a form of reproductive insurance. A brief analysis of
these messages reveals much about the context in which women make decisions about
13 Schattman, supra note 4 at 1758.
14 ASRM Guidelines, supra note 2 at 39.
15 Schattman, supra note 4 at 1758.
16 Several fertility clinics in Canada offer elective egg freezing, including: ASTRA Fertility Group;
ReproMed; IVF Canada; McGill IVF; Genesis Fertility Centre; and Ottawa Fertility Centre, among
others.
17 This assumes three cycles of stimulation totalling $27,000, plus 10 years of storage totally $2500 plus
two cycles of IVF/ICSI totalling $7,000, for a grand total of $36,500. See also Petropanagos et al, supra
note 7 at 667.
18 See Rene Almeling, Sex Cells: The Medical Market for Eggs and Sperm (Berkeley: University of
California Press, 2011).
19 Bennett, supra note 3; Siri Srinivas, “Facebook and Apple to Pay for Female Employees to Freeze Their
Eggs,” The Guardian (15 October 2014), online: <www.theguardian.com/money/us-money-blog/2014/
oct/14/apple-facebook-pay-women-employees-freeze-eggs>.
20 See EggBanxx, “Financing Egg Freezing,” online: <https://www.eggbanxx.com/financing-egg-
freezing>. A similar service is available in Austria: Ovita, “How Much Does it Cost to Have My Oocytes
Cryopreserved?” online: <www.ovita.eu/en-us/kosten.aspx>.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 757
elective egg freezing, the broader social issues underlying the use of this technology, and the
potential role for law.
A. REPRODUCTIVE CONTROL
Egg freezing has been promoted as a way for women to take control of their fertility
because it allows healthy women to postpone childbearing. In this way, egg freezing
promotes reproductive autonomy and gender equality because it allows women to delay
childbearing until later, as men are arguably able to do.21 Rybak takes the position that
elective egg freezing has the “potential to ‘level the playing field’ for women by permitting
them time-unlimited control over their reproductive destiny.”22 Women may choose to
postpone motherhood for many reasons. It may allow her to complete her education, to
achieve financial stability, or to find a suitable partner.23 As a result, elective egg freezing
has been compared to the advent of contraception.24
This message about reproductive control is reflected in the mainstream media. Op-eds in
prominent newspapers like The New York Times, The Wall Street Journal, The Guardian,
and The Atlantic promote elective egg freezing.25 A cover story on Bloomberg Business
News declares, “Freeze your Eggs, Free your Career.”26 In addition, a number of prominent
women have endorsed elective egg freezing as an important tool to control fertility. For
example, Anne Marie Slaughter, Princeton professor, former Director of Policy Planning for
the US State Department, and mother, in her highly publicized article “Why Women Still
Can’t Have It All” recommended that young women freeze their eggs.27 Feminist
anthropologist Marcia Inhorn recommended that her female graduate students freeze their
eggs.28 Sarah Elizabeth Richards who “stashed away several batches of eggs between the
ages of 36 and 38,” in an op-ed in The New York Times, called on physicians to counsel
patients on egg freezing at their annual checkup.29
B. REPRODUCTIVE INSURANCE
Egg freezing has also been promoted as an important risk management tool to protect
against future infertility. In other words, egg freezing is a sort of insurance policy or a form
21 Mertes & Pennings, supra note 6 at 825.
22 Rybak & Lieman, supra note 6 at 1509.
23 WJ Dondorp & GMWR De Wert, “Fertility Preservation for Healthy Women: Ethical Aspects” (2009)
24:8 Human Reproduction 1779; Imogen Goold & Julian Savulescu, “In Favour of Freezing Eggs for
Non-Medical Reasons” (2009) 23:1 Bioethics 47; Rybak & Lieman, supra note 6 at 1509.
24 Rybak & Lieman, ibid.
25 Sarah Elizabeth Richards, “We Need To Talk About Our Eggs,” The New York Times (22 October
2012), online: <www.nytimes.com/2012/10/23/opinion/we-need-to-talk-about-our-eggs.html>
[ Ri ch ar d s, “W e Ne ed t o T al k” ] . S ee also Sarah Elizabeth Richards, Motherhood, Rescheduled: The New
Frontier of Egg Freezing and the Women Who Tried It (New York: Simon & Schuster, 2013); Sarah
Elizabeth Richards, “Why I Froze My Eggs (And You Should, Too),The Wall Street Journal (3 May
2013), online: <www.wsj.com/articles/SB10001424127887323628004578458882165244260>; Srinivas,
supra note 19; Bennett, supra note 3; Anne-Marie Slaughter, “Why Women Still Can’t Have It All,” The
Atlantic (July/August 2012), online: <www.theatlantic.com/magazine/archive/2012/07/why-women-
still-cant-have-it-all/309020/>.
26 Emma Rosenblum, “Later, Baby: Will Freezing Your Eggs Free Your Career?” Bloomberg (17 April
2014), online: <www.bloomberg.com/news/articles/2014-04-17/new-egg-freezing-technology-eases-
womens-career-family-angst>.
27 Slaughter, supra note 25.
28 Inhorn, supra note 5.
29 Richards, “We Need to Talk,” supra note 25.
758 ALBERTA LAW REVIEW (2017) 54:3
of proactive medicine.30 It addresses the worry held by some women that by the time they
are ready to have a baby, they may have difficulty conceiving a healthy child with her own
eggs because they are too old. This has prompted some to refer to elective egg freezing as
reproductive “insurance.”31 Indeed, one marketing firm cleverly calls itself “Eggsurance.”32
The message is clear: a responsible woman will make a responsible choice to freeze her eggs.
This is reflected in the following advertisement: “Success doesn’t just happen, it’s planned
for.”33
Organizations representing reproductive health care professionals have, to varying
degrees, endorsed elective egg freezing as a form of reproductive insurance.34 The first
organization to do so was the European Society for Reproduction and Embryology (ESHRE),
which in 2012, stated that “[o]ocyte cryopreservation should not just be available for women
at risk of premature pathogenic or iatrogenic fertility loss, but also for those who want to
protect their reproductive potential against the threat of time.”35 Most recently, the Canadian
Fertility and Andrology Society (CFAS) published a position statement in 2014 on egg
freezing, describing it as “an option for women wishing to preserve their fertility in the face
of anticipated decline.”36
C. OTHER
Additional benefits of elective egg freezing are identified primarily in the scholarly
literature. Most frequent is the argument that elective egg freezing is one way to address
many of the challenges associated with egg donation by third parties. Elective egg freezing
will decrease the demand for third party eggs and as such addresses the reality that there are
simply not enough donor eggs available for reproductive use37 and that demand is
increasing.38 By decreasing demand for donor eggs, elective egg freezing also indirectly
addresses concerns about the potential exploitation of women who donate their eggs.39 It has
also been argued that freezing eggs rather than embryos will decrease the frequency of
30 Alison Motluk, “Growth of Egg Freezing Blurs ‘Experimental’ Label” (2011) 476 Nature 382.
31 David Molloy et al, “Oocyte Freezing: Timely Reproductive Insurance?” (2009) 190:5 Medical J
Australia 247 at 247.
32 “Eggsurance,” online: <www.eggsurance.com/>.
33 Progyny Egg Freezing, “Success Doesn’t Just Happen, It’s Planned For. Join us in #SF to learn abt
#eggfreezing: RSVP bit.ly/1F6qQXS(10 June 2015 at 6:58 am), online: Twitter <https://twitter.com/
eggbanxx/status/608634246014623745>.
34 In 2013, the American Society for Reproductive Medicine (ASRM) declared egg freezing to no longer
be experimental. But the ASRM has also been more circumspect, concluding “there are not yet sufficient
data to recommend oocyte cryopreservation for the sole purpose of circumventing reproductive aging
in healthy women”: ASRM Guidelines, supra note 2 at 42.
35 ESHRE Task Force on Ethics and Law, “Oocyte Cryopreservation for Age-Related Fertility Loss”
(2012) 27:5 Human Reproduction 1231 at 1236 [ESHRE Guidelines].
36 Canadian Fertility and Andrology Society, “Position Statement on Egg Freezing,” (Montreal: CFAS,
21 October 2014), online: <https://www.cfas.ca/images/stories/pdf/Position_Statement_Egg_Freezing_
2014-10-21.pdf> [CFAS Position Statement].
37 Mertes & Pennings, supra note 6 at 825. Third party donor eggs will continue to be sought by those who
are single fathers by choice as well as gay men.
38 Dominic Stoop, Ana Cobo & Sherman Silber, “Fertility Preservation for Age-Related Fertility Decline”
(2014) 384:9950 Lancet 1311 at 1312 (noting that demand for donor eggs doubled between 2005 and
2009).
39 Kylie Baldwin et al, “Reproductive Technology and the Life Course: Current Debates and Research in
Social Egg Freezing” (2014) 17:3 Human Fertility 170 at 171 [Baldwin et al, “Reproductive
Technology”].
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 759
disputes over frozen embryos arising after relationship breakdown as well as controversies
over the creation and disposal of surplus embryos.40
IV. CONCERNS ABOUT ELECTIVE EGG FREEZING
Despite these positive messages, a number of important concerns have been raised about
elective egg freezing and some of the practices associated with it. I have grouped these
concerns together: first, concerns about the lack of information concerning the safety and
efficacy of elective egg freezing; second, concerns related to the “medical” practice of egg
freezing (for example, informed consent and absence of standardized protocols); and, third,
criticisms related to broader social concerns about elective egg freezing such as its use as a
tool to resolve structural problems regarding caregiving and the workplace. Although an
exhaustive discussion is beyond the scope of this article, these concerns illustrate the need
for greater regulation of elective egg freezing.
A. SAFETY AND EFFICACY
The first concern is that elective egg freezing is relatively new and there is little data about
the success rates and little information regarding the potential risks to women’s health and
the health of resulting children.41
The initial evidence to support the safety and efficacy of elective egg freezing is limited
in several ways. As described above, early evidence indicates no significant differences in
fertilization rates or live birth rates between fresh oocytes and vitrified oocytes.42 Yet, this
data is quite preliminary. These studies involve eggs from young, fertile women.43 They are
based on eggs that have been cryopreserved for a short period of time (usually less than six
months).44 It is therefore not known whether longer vitrification might damage the egg
beyond the normal age-related decrease in egg quality.45 This gap in information is especially
troubling because egg freezing is being marketed to women in their early 30s (or younger)
for potential use much later. In addition, this data is generated from large programs at
experienced centres and there is some question about whether these pregnancy outcomes
apply to small or newly established centres.46 Further, there is no standardized protocol for
egg freezing so it is difficult to make cross-clinic comparisons.47 Perhaps the greatest
limitation is that less than 2,000 births from vitrified eggs are reported in the medical
literature.48
40 Ibid at 172.
41 Françoise Baylis, “Left Out in the Cold: Arguments Against Non-Medical Oocyte Cryopreservation”
(2015) 37:1 J Obstetrics & Gynaecology Can 64 at 64
42 Krinos M Trokoudes, Constantinos Pavlides & Xiao Zhang, “Comparison Outcome of Fresh and
Vitrified Donor Oocytes in an Egg-Sharing Donation Program” (2011) 95:6 Fertility & Sterility 1996.
43 Schattman, supra note 4 at 1757–58.
44 Ibid.
45 Ibid.
46 Ibid at 1758.
47 Cassie T Wang et al, “Optimized Protocol for Cryopreservation of Human Eggs Improves
Developmental Competence and Implantation of Resulting Embryos” (2013) 6:15 J Ovarian Research
1 at 15.
48 Schattman, supra note 4 at 1758.
760 ALBERTA LAW REVIEW (2017) 54:3
With respect to the potential risk to children, the initial data indicates that, at least in the
short-term, cryopreservation does not increase the health risks to children. To date, there
appears to be no evidence of congenital abnormalities in children born of vitrified eggs.49
However, because this technique is new, there are no long-term studies involving the health
of children born from vitrified eggs.50 As a result, Schattman concludes there is insufficient
data to rule out an increased risk of birth defects or potential long-term adverse effects on
children.51 Indeed, the ASRM has concluded egg freezing should not be “routinely” used
until more detailed long-term data on the health of children is available.52
With respect to women’s health, the physiological risks associated with ovarian
stimulation are not well known. Again, the short-term risks associated with ovarian
stimulation53 and egg retrieval54 are well documented. But the long-term risks are not well-
understood. There are some reports of increased cancer risks for women who undergo
ovarian stimulation.55 More long-term data is required. Further, there are additional risks of
pregnancy at an advanced age for women and children. Depending on health status and age,
women are at an increased risk of gestational diabetes, pre-eclampsia, Caesarean delivery,
and preterm delivery with low birth weight.56 For children, these risks include premature
birth and low birth weight as well as a potential increase in the risk of “congenital structural
abnormalities” as well as a “small but increased risk of cancer and structural cardiac
anomalies.”57
Further, little is known about the psychological impact of elective egg freezing on women.
To date, there are only a few published studies inquiring into the motivations of women who
have chosen elective egg freezing58 as well as a few studies of women describing their
49 Ri-Cheng et al, “Obstetric and Perinatal Outcome in 200 Infants Conceived From Vitrified Oocytes”
(2008) 16:5 Reproductive BioMedicine Online 608, online: <www.rbmojournal.com/article/S1472-
6483(10)60471-3/pdf>; N Noyes, E Porcu & A Borin, “Over 900 Oocyte Cryopreservation Babies Born
With No Apparent Increase in Congenital Anomolies” (2009) 18:6 Reproductive BioMedicine Online
769, online: <www.rbmojournal.com/article/S1472-6483(10)60025-9/pdf>.
50 Schattman, supra note 4 at 1759.
51 Ibid at 1758–59.
52 ASRM Guidelines, supra note 2 at 42.
53 The risks of the stimulation drugs include: fatigue, nausea and vomiting, hot flashes, headache,
irritability and moodiness, abdominal discomfort, bloating and temporary weight gain, breast tenderness,
constipation and gas, and irritation at the injection site: Mayo Clinic Staff, “In Vitro Fertilization (IVF)”
Mayo Clinic, online: <www.mayoclinic.org/tests-procedures/in-vitro-fertilization/details/risks/cmc-
20207080>.
54 The risks of retrieval complications may include bloating, intra-abdominal bleeding, ovarian torsion,
infection, injury, and severe pain: Daniel Bodri et al, “Complications Related to Ovarian Stimulation
and Oocyte Retrieval in 4052 Oocyte Donor Cycles” (2008) 17:2 Reproductive BioMedicine Online 237
at 239, online: <www.rbmojournal.com/article/S1472-6483(10)60200-3/pdf>. There is also a risk of
developing ovarian hyperstimulation syndrome: Doron Shmorgun & Paul Claman, “The Diagnosis and
Management of Ovarian Hyperstimulation Syndrome” (2011) 33:11 J Obstetrics & Gynaecology Can
1156 at 1159. See also Annick Delvigne, “Epidemiology of OHSS” (2009) 19:1 Reproductive
BioMedicine Online 8, online: <www.rbmojournal.com/article/S1472-6483(10)60040-5/ pdf>.
55 I Rizzuto, RF Behrens & LA Smith, “Risk of Ovarian Cancer in Women Treated with Ovarian
Stimulating Drugs for Infertility(2013) 8 Cochrane Database Systematic Reviews CD008215. See also
Helen Pearson, “Health Effects of Egg Donation May Take Decades to Emerge” (2006) 442 Nature 607.
56 Petropanagos et al, supra note 7 at 667.
57 Ibid.
58 Kylie Baldwin et al, “Oocyte Cryopreservation for Social Reasons: Demographic Profile and Disposal
Intentions of UK Users” (2015) 31:2 Reproductive BioMedicine Online 239, online: <www.rbm
online:com>; Baldwin et al, “Reproductive Technology,” supra note 39 at 172.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 761
experience of freezing their eggs.59 While a detailed description of their findings is beyond
the scope of this article, such studies provide important information about the positive and
negative experiences of women and the need for greater regulation in certain areas.
Unfortunately, these studies are quite small and were carried out in countries with different
regulatory frameworks and as such are of limited usefulness in the Canadian context.
Importantly, the ASRM has acknowledged these gaps in the medical literature. While it
deemed elective egg freezing to no longer be experimental, the ASRM wrote: “there are no
data to support the safety, efficacy, ethics, emotional risks, and cost-effectiveness of oocyte
cryopreservation for this indication [elective cryopreservation to defer childbearing].”60
B. THE PRACTICE OF EGG FREEZING
There are also concerns arising from the medical practice of elective egg freezing. Some
worry that the information women are receiving about elective egg freezing may undermine
the informed consent process.61 Concerns about informed consent arise from the lack of
available information described earlier as well as the heavy promotion and marketing of
elective egg freezing from various sources. As discussed, certain members of the fertility
industry (who profit handsomely from this practice) market egg freezing as a form of
reproductive insurance to women. This is clearly problematic when there is no guarantee of
a live baby from a batch of frozen eggs.62 Some of the marketing by the fertility industry is
deeply troubling. Not only do these advertisements imply that egg freezing is a guarantee for
a future baby, they may mislead women about the age at which egg freezing can occur.63
Indeed, one author who writes in support of elective egg freezing, noted with concern the
practice of “manipulative, dishonest, and unseemly marketing.”64 These marketing tactics are
especially concerning as research shows “women often demonstrate a mistaken faith in the
ability of ARTs such as IVF to help them overcome declining fertility.”65
Another concern relating to the medical practice of egg freezing is the lack of standardized
criteria governing the process. For example, should there be a restriction on recommending
elective egg freezing to women above a certain age? The consensus is egg freezing should
be undertaken by women between ages 30 and 35.66 Yet the average reported age of women
59 Brooke Hodes-Wertz et al, What Do Reproductive-Age Women Who Undergo Oocyte
Cryopreservation Think About the Process as a Means to Preserve Fertility?” (2013) 100:5 Fertility &
Sterility 1343; Victoria Vallejo et al, “Social and Psychological Assessment of Women Undergoing
Elective Oocyte Cryopreservation: A 7-Year Analysis” (2013) 3:1 Open J Ob stetr ics & Gynecology 1;
D Stoop et al, “Does Oocyte Banking for Anticipated Gamete Exhaustion Influence Future Relational
and Reproductive Choices? A Follow-Up of Bankers and Non-Bankers” (2015) 30:2 Human
Reproduction 338.
60 ASRM Guidelines, supra note 2 at 42.
61 Baylis, supra note 41 at 65.
62 As Ronald Fineberg says, “[i]nsurance means you are guaranteed to receive a financial payout or service
to compensate you for a loss if a bad event occurs.… [E]gg freezing as it exists today does not protect
women from infertility nor does it guarantee them a pregnancy in the future”: Ronald F Feinberg,
“Elective Egg Freezing: 10 Thoughts from an REI,” ObGyn.net (16 October 2014), online: <www.
obgyn.net/ivf/elective-egg-freezing-10-thoughts-rei>.
63 Karey Harwood, “Egg Freezing: A Breakthrough for Reproductive Autonomy?” (2009) 23:1 Bioethics
39 at 45.
64 Rybak & Lieman, supra note 6 at 1511.
65 Baldwin et al, “Reproductive Technology,” supra note 39 at 176. The authors note that the knowledge
of age-related fertility decline is low and that the presentation of the success of ARTs and celebrity older
mothers in popular media may contribute to misperceptions women have.
66 Mertes & Pennings, supra note 6 at 826.
762 ALBERTA LAW REVIEW (2017) 54:3
who freeze their eggs is 38.67 Further, when and how should women be informed of egg
freezing? Currently, most women learn about elective egg freezing from advertisements,
marketing activities like egg freezing parties, and employers.68 O th e r a p pr o ac h es m ig ht b et te r
promote women’s reproductive autonomy. Last fall, Dr. Glenn Schattmann, a reproductive
health physician, writing in the New England Journal of Medicine recommended that “[t]he
possibility of elective cryopreservation of oocytes should be discussed with all women who
are in their early 30s, since the number of available and genetically normal eggs continually
decreases over time.”69 It is questionable whether this is the right approach, but this
recommendation highlights the absence of a standard approach to fertility education,
assessment, and counselling.
C. SOCIAL IMPLICATIONS
A third category of concerns relates to the broader context of elective egg freezing and in
particular the impact of this practice on society rather than simply on the individual. A brief
discussion of the range of critiques is raised here for the purpose of determining the
appropriate role for law.70 Many have argued elective egg freezing does not resolve the larger
societal issues regarding the accommodation of caregiving in the workplace.71 Instead, egg
freezing simply postpones caregiving to a later time in one’s career.72 A closely related
concern is that women may feel pressured to freeze their eggs for the sake of their careers,
especially where this is a “benefit” paid for by the employer.73 Further, elective egg freezing
is only available to women of high socioeconomic status. The cost means egg freezing is
only available for women employed in high wage jobs and “does not necessarily change the
game for women who do not have a lot of money (and this includes many racialized women,
single women, and sexual minority women).”74 Thus, it is argued that women would be better
off with “paid parental and sick leave, affordable child care, comprehensive health insurance,
immigrant health care, and adequate wages.”75
Elective egg freezing has also been criticized for the stereotypes it perpetuates about
parenthood and family formation. By marketing elective egg freezing as a choice responsible
women make, elective egg freezing promotes the stigma of childlessness and reinforces the
gendered expectation that women must become mothers.76 Furthermore, egg freezing has
been criticized for overemphasizing the importance of genetic connections in family
building. Egg freezing reifies the genetic connection between parent and child; family
building by donor eggs or adoption are considered to be a second-best option.77 Thus, Martin
67 J Nekkebroeck, D Stoop & P Deuroey, “A Preliminary Profile of Women Opting for Oocyte
Cryopreservation for Non-Medical Reasons” (2010) 25:1 Supplement Human Reproduction i15.
68 See e.g. EggBanxx, “EggBanxx Egg Freezing Parties,” online: <https://www.eggbanxx.com/events>.
69 Schattman, supra note 4 at 1756.
70 See generally Alana Cattapan et al, “Breaking the Ice: Young Feminist Scholars of Reproductive Politics
Reflect on Egg Freezing” (2014) 7:2 Intl J Feminist Approaches to Bioethics 236.
71 Harwood, supra note 63 at 45; Goold & Savulescu, supra note 23 at 52–57.
72 Baldwin et al, “Reproductive Technology,” supra note 39.
73 Baylis, supra note 41 at 65.
74 Cattapan et al, supra note 70 at 241 [footnotes omitted].
75 Morgan & Taylor, supra note 5.
76 Harwood, supra note 63.
77 L Schuman et al, “Women Pursuing Non-Medical Oocyte [Cryopreservation] Would Consider Non-
Genetic Methods of Family Building Such as Adoption or Ovum Donation” (2013) 100:3 Supplement
Fertility & Sterility S66.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 763
concludes, “[w]hat has been preserved is not their fertility, but the genetic connection” with
the resulting child.78 Egg freezing also promotes a traditional view of the family: women
should freeze their eggs in the hopes of finding a suitable partner rather than opting to raise
a child as a single parent.
Elective egg freezing has been criticized for medicalizing reproduction. As Martin
explains, this is a medical solution for a (future) medical problem: reproductive ageing and
“anticipated infertility.”79 This is particularly problematic as it could apply to a significant
number of women who are not, in fact, infertile. By adopting a medicalized approach to
reproduction, “treating it as a problem becomes an imperative not a matter of whether, but
of how and when.”80
V. CURRENT REGULATION OF
ASSISTED HUMAN REPRODUCTION IN ONTARIO
The regulation of assisted human reproduction, including elective egg freezing, is quite
limited in many provinces.81 An exhaustive description of the regulatory framework for
assisted human reproduction in each province is beyond the scope of this article. Yet a brief
review of Ontario’s regulatory framework illustrates that elective egg freezing is subject to
a patchwork of voluntary mechanisms, self-regulatory regimes, and, in fact, many aspects
are not regulated at all.82 As a result of the current regulatory environment, the health and
safety of women who freeze their eggs and their resulting children may be put at risk.
A. REGULATION OF REPRODUCTIVE
HEALTH CARE PROFESSIONALS
Reproductive health care professionals, such as physicians and nurses, are governed by
a patchwork of laws and policies in Ontario. First, they are members of self-regulating
bodies.83 That is, their conduct is governed by fellow members of their profession through
a college (for example, physicians are governed by the College of Physicians and Surgeons
of Ontario) and by virtue of the Regulated Health Professions Act, 1991.84 Ontario, like the
majority of other provinces, does not have a standard specific to assisted human
78 Lauren Jade Martin, “Anticipating Infertility: Egg Freezing, Genetic Preservation, and Risk” (2010) 24:4
Gender & Society 526 at 533 [emphasis in original]. See also Catherine Waldby, “The Oocyte Market
and Social Egg Freezing: From Scarcity to Singularity” (2015) 8:3 J Cultural Economy 275 at 281.
79 Martin, ibid at 359.
80 Ibid at 530.
81 The regulation of the medical practice of assisted human reproduction varies from province to province:
Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457.
82 For a detailed discussion, see Colleen M Flood & Bryan Thomas, “Regulatory Failure: The Case of the
Private-For-Profit IVF Sector” in Trudo Lemmens et al, eds, Regulating Creation: The Law, Ethics, and
Policy of Assisted Human Reproduction (Toronto: University of Toronto Press, 2017) [forthcoming]
[Flood & Thomas, “Regulatory Failure”]. Indeed, Flood characterizes the regulation of AHR in Ontario
as a “regulatory failure” (at 359).
83 For a general description, see Tracey Epps, “Regulation of Health Care Professionals” in Jocelyn
Downie, Timothy Caulfield & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed
(Markham: LexisNexis Canada, 2011) 75.
84 SO 1991, c 18 [RHPA]. The Health Professions Procedural Code, which is schedule 2 to the RHPA, is
deemed to be part of each health profession’s constituting Act (RHPA, s 4).
764 ALBERTA LAW REVIEW (2017) 54:3
reproduction.85 Many scholars have argued professional self-regulation falls short:
enforcement requires patients to complain as opposed to providing for systematic review of
members, the process does not provide compensation for victims which reduces the incentive
to file a complaint, the sanctions in self-regulatory regimes are weak, and sanctions (other
than formal discipline measures) are not available to the public.86
In addition, CFAS sets certain practice guidelines for reproductive health care
professionals. CFAS has issued clinical practice guidelines on matters like the management
of ovarian hyperstimulation syndrome, multiple embryo transfer, and most recently, on third
party reproduction.87 To date, CFAS has issued a position statement on elective egg freezing
but has not developed a clinical practice guideline. Clinical practice guidelines are intended
to promote consistent and higher quality care based on up-to-date medical evidence.88 In
certain cases, clinical practice guidelines may also be relied upon to determine the standard
of care in medical malpractice suits, discussed below.89 While they certainly play an
important role, clinical practice guidelines have also been the subject of criticism: they
depend largely on the accuracy and availability of scientific evidence, and where that
evidence is weak, the resulting guideline is less reliable;90 they may be disregarded by
practitioners for a number of reasons;91 there may be biases in their development as the
authors may be influenced by industry activities or other institutional relationships;92 and
there is no standard approach to their development such as who should be involved in the
development process (for example, non-physician experts like psychologists, ethicists,
lawyers, and the public).93
85 Only the College of Physicians and Surgeons of both Alberta and Saskatchewan have done so, and they
do not explicitly address elective egg freezing: College of Physicians & Surgeons of Alberta, In Vitro
Fertilization (IVF): Standards & Guidelines (Alberta: College of Physicians & Surgeons of Alberta,
2011), online: <cpsa.ca/wp-content/uploads/2015/03/NHSF_IVF_Standards_-_December2011.pdf>;
College of Physicians and Surgeons of Saskatchewan, “Standards: Assisted Reproductive Technology,”
online: <https://www.cps.sk.ca/imis/Documents/Legislation/Policies/STANDARD%20-%20Assisted
%20Reproductive%20Technology.pdf>.
86 Epps, supra note 83 at 85–87; Flood & Thomas, supra note 82; Glenn Regehr & Kevin Eva, “Self-
Assessment, Self-Direction, and the Self-Regulating Professional” (2006) 449:1 Clinical Orthopaedics
& Related Research 34. Indeed, for these reasons and others, physicians in the UK are no longer self-
regulating: Mary Dixon-Woods, Karen Yeung & Charles L Bosk, “Why is UK Medicine No Longer a
Self-Regulating Profession? The Role of Scandals Involving ‘Bad Apple’ Doctors” (2011) 73:10 Social
Science & Medicine 1452.
87 Canadian Fertility & Andrology Society, Guidelines for Third Party Reproduction, online:
<https://cfas.ca/clinical-practice-guidelines/>.
88 Dylan Kozlick, “Clinical Practice Guidelines and the Legal Standard of Care: Warnings, Predictions,
and Interdisciplinary Encounters” (2011) 19 Health LJ 125 at 131. Clinical practice guidelines may be
used by a court in establishing the standard of care owed to the patient. This is one of four elements that
must be established in order to succeed in a negligence claim: Bernard Dickens, “Medical Negligence”
in Downie, Caulfield & Flood, supra note 83 at 117.
89 Kozlick, ibid at 145. See also Chris Taylor, “The Use of Clinical Practice Guidelines in Determining
Standard of Care” (2014) 35:2 J Leg Med 273.
90 Taylor, ibid at 276–77.
91 These reasons may include: lack of awareness, lack of familiarity, lack of agreement, lack of self-
efficacy, lack of outcome expectancy, inertia of previous practice, and external barriers such as time or
practice circumstances: Brent Graham, Clinical Practice Guidelines: What Are They and How Should
They Be Disseminated?” (2014) 30:3 Hand Clinics 361 at 362–63. The shortcomings are well-illustrated
with respect to embryo transfer. In Quebec, single embryo transfer was mandated by law and as a result,
sharply decreased. By contrast, there has been a gradual decrease in the remaining provinces.
92 Kozlick, supra note 88 at 139–42. See also KD Boudoulas et al, “The Shortcomings of Clinical Practice
Guidelines” (2015) 130:3 Cardiology 187 at 193.
93 Taylor, supra note 89 at 274. In the case of CFAS, it appears that physicians draft the guidelines with
limited input from other experts like psychologists, ethicists, and lawyers, or from the public: Canadian
Fertility & Andrology Society, “CPG Manual,” online: <https://cfas.ca/guidelines/cpg-manual> [CFAS].
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 765
Medical negligence claims are another legal mechanism that addresses the misconduct of
health care professionals.94 As mentioned, clinical practice guidelines may be relevant to
setting the standard of care in a medical negligence claim.95 Although a full discussion of
medical negligence claims is beyond the scope of this article, one author has noted that there
are “enormous challenges to successfully litigating medical error”96 under the current tort
system.
B. REGULATION OF FERTILITY CLINICS
The regulation of fertility clinics is also multifaceted and, in some respects, incomplete.
Fertility clinics are regulated in four main ways. The provincial regulations that apply to
publicly delivered health care services in private clinics do not apply, for the most part, to
fertility clinics. To the extent that the Independent Health Facilities Act applies to fertility
clinics, it does not apply to privately funded services such as elective egg freezing.97
Fertility clinics are subject to the Out-of Hospital Premises Inspection Program (OHPIP),
but again this framework appears to be ill-suited to promoting the health of women who are
electing to freeze their eggs.98 The OHPIP was developed and is enforced by the College of
Physicians and Surgeons of Ontario (CPSO) for clinics where procedures using anaesthesia
are performed. The OHPIP standards govern the qualifications of health care professionals
who work in the clinic,99 physical standards,100 procedure standards,101 infection control,102
and quality assurance.103 Since physicians administer anaesthesia for certain procedures in
fertility clinics, fertility clinics are subject to this self-regulatory regime.104 W hi le th e OHP IP
does set standards in these areas, they have been described as a relatively weak regulatory
tool.105 Further, these standards do not address concerns specific to egg freezing, such as the
lack of safety data collected about egg freezing or potential shortcomings in the informed
consent process (or indeed concerns about IVF generally.)106 Notably, at the time of writing
the CPSO had undertaken a review of the OHPIP standards in fertility services premises.107
94 CFAS, ibid.
95 Clinical practice guidelines may be used by a court in establishing the standard of care owed to the
patient. This is one of four elements that must be established in order to succeed in a negligence claim:
Dickens, supra note 88.
96 Colleen M Flood & Bryan Thomas, “Canadian Medical Malpractice Law in 2011: Missing the Mark On
Patient Safety” (2011) 86:3 Chicago-Kent L Rev 1053 at 1091.
97 RSO 1990, c I.3. See Flood & Thomas, “Regulatory Failure,” supra note 82 at 451.
98 The College of Physicians and Surgeons of Ontario, Out-of-Hospital Premises Inspection Program
(OHPIP): Program Standards (September 2013), online: <www.cpso.on.ca/CPSO/media/documents/
CPSO%20Members/OHPIP/OHPIP-standards.pdf> [OHPIP Standards]. In Ontario, all IVF services
occur in private fertility clinics as opposed to in public hospitals, as is the case in other provinces, such
as Quebec.
99 Ibid at 18–23 covers Medical Director Qualifications, Physician Performing Procedures Qualifications,
Physician Administering Anesthesia Qualifications, and Nurse Qualifications.
100 Ibid at 12–19 covers General Physical Standards, Operating Room Physical Standards, Recovery-Area
Physical Standards, General Medication Standards, Controlled Substances Standards, and Drugs for
Resuscitation.
101 Ibid at 24–31 covers Pre-Procedure Patient-Care Standards, Intra-Procedure Care for Sedation, Regional
Anesthesia or General Anesthesia and Post-procedure Patient Care.
102 Ibid at 31 covers Infection Control.
103 Ibid at 33–35 covers Monitoring Quality of Care.
104 Ibid. Fertility Clinics qualify as Level 2. For a more detailed discussion, see Flood & Thomas,
“Regulatory Failure,” supra note 82.
105 Flood & Thomas, “Regulatory Failure,” ibid.
106 Ibid.
107 The College of Physcians and Surgeons of Ontario, “Applying the OHPIP Standards in Fertility Services
Premises (Consultation Closed)” (Toronto: CPSO, 2017), online: <policyconsult.cpso.on.ca/ ?page_id=
9020>.
766 ALBERTA LAW REVIEW (2017) 54:3
In addition, certain fertility clinics participate in an accreditation program offered through
Accreditation Canada.108 Accreditation Canada has established three standards: clinical
services, laboratory services, and work with third party donors.109 Unfortunately, these
standards do not address a number of the concerns specific to elective egg freezing.
Voluntary accreditation is laudable and provides patients with an assurance that the clinic has
met these standards. Yet, there is some concern that, since they are voluntary, a clinic that
may be in breach of one of the standards would likely not submit for accreditation.
Finally, many Canadian fertility clinics provide statistical information about IVF (for
example, numbers of cycles of IVF/ICSI, number of singleton and multiple births, number
of IVF/ICSI cycles using donor eggs) to a voluntary information registry: CARTR-Plus.110
A range of information regarding the number of IVF cycles and their outcome (for example,
pregnancy, multiple birth rate) is submitted to CARTR-Plus.111 While the CARTR-Plus
Registry is an important data collection tool, there are concerns that it does not adequately
address the information gaps specific to elective egg freezing. While participating clinics do
report the number of cycles started for “oocyte/embryo banking for social reasons,” there
appears to be no detailed information regarding the length of storage or the outcomes of these
particular cycles. Further, it is concerning that information collection is voluntary and there
are no penalties for failing to disclose or inadequate disclosure.
While many reproductive health care professionals and clinics have taken important steps
to establish standards that promote high quality reproductive health care, more is required.
The current framework addresses some aspects of elective egg freezing indirectly, while
others are not at all addressed. In my view, what is needed to promote women’s reproductive
autonomy and to protect and promote the health and safety of women who choose to freeze
their eggs and their resulting children are regulatory mechanisms that specifically target
elective egg freezing.
VI. PROPOSAL: SPECIFIC REGULATION
OF ELECTIVE EGG FREEZING
Both direct and indirect regulations specific to elective egg freezing are important tools
to ensure that it is a safe and beneficial option for women and children. Many countries have,
to varying degrees, developed standards governing elective egg freezing that apply to
reproductive health care providers and fertility clinics. Many aspects of elective egg freezing
could be the subject of regulation, from how egg freezing is marketed to the requirements
108 Accreditation Canada, “Review Our Standards,” online: <https://accreditation.ca/review-our-standards>.
109 Accreditation Canada, “Assisted Reproductive Technology (ART) Standards for Laboratory Services,”
online: <https://accreditation.ca/assisted-reproductive-technology-art-standards-laboratory-services>.
The standards are only available for a fee.
110 Better Outcomes Registry & Network Ontario, “CARTR Plus,” online: <https://www.bornontario.ca/
en/partnership-projects/cartr-plus/>. In 2013, CARTR merged with Better Outcomes Registry &
Network (BORN) Ontario, the Ontario prenatal registry, to improve data collection for IVF, now
referred to as CARTR-Plus. BORN operates the CARTR, Plus system under its status as a prescribed
health registry under Ontario’s Personal Health Information Protection Act, 2004, SO 2004, c 3,
Schedule A.
111 The information collected includes: the number of IVF cycles conducted and their outcomes, the number
of IVF cycles carried out with a woman’s own oocytes or third party oocytes, success rates of cycles of
IVF with and without ICSI, IVF success rates by patient age, the single and multiple birth rate, preterm
births based on the type of IVF cycle.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 767
for storage and destruction of eggs to the conditions under which employers can offer
elective egg freezing as an employee benefit. Further, it may be that comprehensive and
direct government regulation of assisted human reproduction generally, including elective
egg freezing, is warranted.112 The purpose of this article is more modest. I recommend
strengthening the existing regulatory framework governing health care professionals and
clinics in three areas. These include: collection and disclosure of information; informed
consent; and fertility education and counselling. In addition, I propose the creation of an
expert body to assist with the regulation of these issues as well as to examine the practice of
egg freezing in its wider social context. The purpose of these recommendations is not to
restrict women’s reproductive autonomy or freedom, but rather to promote informed
decision-making and to ensure that women who choose to freeze their eggs for future
reproductive use have access to high quality and safe reproductive health care. Any
implementation of such regulations should therefore operate with that purpose in mind.
A. COLLECTION AND DISCLOSURE OF INFORMATION
The first area where greater regulation is needed is the collection and disclosure of
information regarding elective egg freezing. As described earlier, there is a significant
shortage of data about the safety and efficacy of elective egg freezing.113 Data regarding egg
freezing is absolutely necessary to ensure egg freezing is safe, to ensure women make an
informed choice about whether or not to freeze their eggs, to educate the public, and for
future policy-making.114
As the 2015 CARTR-Plus data illustrates, limited information is collected about elective
egg freezing in Canada, specifically the number of cycles carried out for the purpose of
electively freezing one’s eggs.115 As mentioned, the disclosure of information about assisted
human reproduction in Canada is voluntary.116 By contrast, other jurisdictions mandate the
collection of information pertaining to assisted human reproduction, including elective egg
freezing.117 For example, the Human Fertilisation and Embryology Authority (HFEA), the
United Kingdom’s regulatory body, oversees a detailed information registry: it mandates the
collection of information and data on each cycle of AHR treatment and records the number
of eggs frozen for future reproductive use,118 the number of children born from cryopreserved
112 For arguments in favour of greater regulation, see Flood & Thomas, “Regulatory Failure,” supra note
82; Erin Nelson, Law, Policy and Reproductive Autonomy (Oxford: Hart, 2013) at 268–71; Vanessa
Gruben, “Women as Patients, Not Spare Parts: Examining the Relationship Between the Physician and
Women Egg Providers” (2013) 25:2 CJWL 249.
113 As discussed in Part V above, disclosure to the CARTR-Plus Registry is voluntary.
114 Indeed, the ESHRE guidelines on elective egg freezing recommend information collection on elective
egg freezing: ESHRE Guidelines, supra note 35 at 1236.
115 Better Outcomes & Registry Network Ontario, “CARTR Plus: BORN Information System
Enhancements” (3 June 2013), online: <https://www.bornontario.ca/assets/documents/dataentrytraining/
trainingpresentations/BIS%20Enhancements%20CARTR%20Plus%20Data%20entry%20sites%20-
%20June%202013.pdf>.
116 Notably, in Alberta and Saskatchewan, the provincial college standards require the collection and
disclosure of information to CARTR. See supra note 85.
117 For a general overview, see Nelson, supra note 112 at 241–54.
118 UK, Human Fertilisation & Embryology Authority, “What We Do” (HFEA, 25 July 2013), online:
<www.hfea.gov.uk/133.html>; UK, Human Fertilisation & Embryology Authority, “Our Role as an
Improved Information Provider” (HFEA, 26 September 2009), online: <www.hfea.gov.uk/5443.html>.
768 ALBERTA LAW REVIEW (2017) 54:3
eggs,119 and information on adverse events.120 Similarly, the Victorian Assisted Reproduction
Treatment Authority (VARTA), which is responsible for registering assisted reproductive
clinics, requires the collection of information regarding elective egg freezing and provides
an annual report on the outcomes for treatment of cryopreserved non-donor eggs.121
To ensure that this practice is safe and to determine its efficacy, Canadian fertility clinics
should be required to collect and disclose certain information about elective egg freezing. A
health care professional should be able to advise a woman who wishes to freeze her eggs in
her late 20s for use when she is in her late 30s or early 40s, what the chance of a live birth
is as well as the potential health risks for her and her child(ren). What information must be
collected to satisfy these purposes? First, to determine success rates, clinics should collect
de-identified information regarding live birth rates, broken down on the basis of age and the
duration of oocyte cryopreservation. Second, data regarding short- and long-term health risks
associated with ovarian stimulation must be collected. Finally, both short- and long-term
information regarding the health and development of children born from cryopreserved eggs
must be collected. Like other forms of health information, this information must be collected
and stored in a manner that respects federal and provincial privacy laws.122 It appears that the
CARTR-Plus registry is well-suited to collecting and storing this information as it has been
collecting information regarding assisted human reproduction on a voluntary basis for several
years. In addition, their staff has the expertise to address some of the roadblocks to data
collection raised by Schattman such as clinical differences in freezing and thawing
techniques.123 Further, it is well-placed to consult with key stakeholders about how to collect
information effectively and in a way that respects the privacy rights and interests of patients.
In addition to the mandatory collection of this data, additional information, which will
lead to a deeper understanding of the practice of elective egg freezing, should be sought on
a voluntary basis. For example, the collection of psychosocial information about elective egg
freezing, such as women’s motivations for choosing elective egg freezing, their experience
with the process, and decision-making regarding storage would provide important
information regarding the social, economic, and political forces that influence a woman’s
decision to freeze her eggs. As mentioned earlier, few such studies exist, and similar studies
119 UK, Human Fertilisation & Embryology Authority, “Freezing and Storing Eggs” (HFEA, 15 June 2015),
online: <www.hfea.gov.uk/46.html> [HFEA, “Freezing and Storing Eggs”].
120 UK, Human Fertilisation & Embryology Authority, Annual Report and Accounts 2015/16 (London: Her
Majesty’s Stationery Office, 2016) at 8, online: <www.hfea.gov.uk/docs/56071_HC_380_WEB_
V0.2.pdf>.
121 VARTA was created pursuant to the Assisted Reproductive Treatment Act 2008 (Vic), Part 10. See
Australia, Victorian Assisted Reproductive Treatment Authority, Annual Report 2015 (Melbourne:
VARTA, 2016) at 32, online: <https://www.varta.org.au/sites/varta/files/public/VARTA%20Annual
%20Report%202015.pdf> [VARTA, Annual Report]. Notably, VARTA is responsible for registering
assisted reproductive clinics, providing public education, community consultation about assisted human
reproduction, and monitoring developments, trends and activities relating to the causes and prevention
of infertility. Similarly, in Western Australia the Human Reproductive Technology Act 1991 (WA),
establishes the Western Australia Reproductive Technology Council (WARTC). The functions of this
Council include formulating a Code of Practice to govern the use of artificial fertilization and storage
procedures, to advise about the compliance of licenses, to encourage and facilitate research into the
causes and prevention of all types of human infertility and on the social and public health implications
of reproductive technology.
122 Elaine Gibson, “Health Information: Confidentiality and Access” in Downie, Caulfield & Flood,
supra note 83 at 262.
123 Schattman, supra note 4 at 1759.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 769
that are larger in scale and Canada-specific would serve as a valuable resource for law and
policy-makers.
In addition to the collection of this information, it is necessary that registry information
in anonymized form be made available to researchers, stakeholders, and the public. Again,
we can look to other jurisdictions for models of information disclosure. For example, the
HFEA, pursuant to its educative function, has published a highly accessible information
sheet on elective egg freezing that includes detailed information including up-to-date success
rates and risk information, on its website.124 Similarly, the VARTA reports on the outcomes
for treatment of cryopreserved non-donor eggs125 and publishes a range of information on its
website about social egg freezing.126 Ensuring that this information is available to the public
for both education and research purposes will promote informed decision-making and good
policy-making.127
B. INFORMED CONSENT
A second concern regarding elective egg freezing relates to informed consent. As
discussed, there are areas of uncertainty regarding the safety and efficacy of egg freezing.128
Further, there is some concern that the persistent marketing of elective egg freezing as a form
of “reproductive insurance” to women may undermine the informed consent process.129 T he
doctrine of informed consent seeks to promote patient autonomy and is premised on the
principle that patients have a right to make “meaningful decisions” about whether to undergo
a medical treatment.130 In this section, I offer some preliminary ideas on what information
is likely required to promote informed decision-making in this context. Given the limited
space available, important questions relating to whether a woman can every truly make an
informed choice in the absence of long-term health information, and the shortcomings of the
current law of informed consent more generally, are not addressed here.
Canadian law requires that a physician obtain valid informed consent before treating a
patient.131 To be valid, the consent must be given by a competent individual and it must be
free and informed. In addition, the Assisted Human Reproduction Act requires an individual
124 HFEA, “Freezing and Storing Eggs,” supra note 119.
125 VARTA, Annual Report, supra note 121 at 32.
126 Victorian Assisted Reproductive Treatment Authority, “Social Egg Freezing,” online: <https://www.
varta.org.au/information-support/fertility-and-infertility/fertility-preservation/social-egg-freezing>
[VARTA, “Social Egg Freezing”].
127 As discussed above, there are examples of such bodies in other jurisdictions, such as HFEA and
VARTA. Other domestic examples include: Ontario, Institute for Clinical and Evaluative Sciences,
online: <www.ices.on.ca>. Canadian Institute for Health Information “is an independent, not-for-profit
organization that provides essential information on Canada’s health systems and the health of
Canadians.… Our stakeholders use our broad range of health databases, measurements and standards,
together with our evidence-based reports and analyses, in their decision-making processes. We protect
the privacy of Canadians by ensuring the confidentiality and integrity of the health care information
[provided]”: Canadian Institute for Health Information, About CIHI,” online: <https://www.cihi.ca/en/
about-cihi>.
128 Schattman, supra note 4 at 1758.
129 See discussion in Part IV, above.
130 Malette v Shulman (1990), 72 OR (2d) 417 at 423–24.
131 The physician’s duty to obtain informed consent is required by the common law and has been codified
in certain provinces. For example, in Ontario, physicians are required to obtain informed consent where
any treatment is proposed for an individual: Health Care Consent Act, 1996, SO 1996, c 2, Schedule A,
s 10.
770 ALBERTA LAW REVIEW (2017) 54:3
to consent to certain procedures.132 For consent to be free and informed, Canadian courts
have explained that physicians must disclose “the material risks, including probability and
gravity, grave consequences even if they have a low probability, and what the doctor knows
or should know the patient deems relevant; special or unusual risks.”133 Further, the courts
have held that when a medical procedure is elective, as is the case with elective egg freezing,
a high standard of disclosure applies and even minimal risks must be disclosed.134 The
question with respect to elective egg freezing is what information is needed to satisfy this
legal standard?
Based on the jurisprudence described above, it is likely that three categories of
information should be disclosed to women considering elective egg freezing. First, women
should be provided with known physical and psychological risks associated with ovarian
stimulation, egg retrieval, and IVF and ICSI (including bloating and swelling, ovarian
torsion, infection, potential internal bleeding, and, most seriously, ovarian hyperstimulation
syndrome). Second, women must be informed about the chance of a successful live birth and
the possibility of failure. Women should be informed that there is little data on the success
rates of live births resulting from cryopreserved eggs. Women must be informed that they
will likely need to undergo multiple cycles to harvest sufficient eggs to have a good chance
at a future birth and there is absolutely no guarantee these eggs will later result in a live
birth.135 Women should be told that freezing at an older age (38 and older) may result in too
few eggs or eggs of low quality and as a result there is a very low probability of pregnancy.136
Further, because there is no standard protocol for egg freezing and warming techniques,
success rates will vary between clinics.137 And third, women must be advised the long-term
health risks to any resulting child are largely unknown.138
Importantly, this list of information is based on a traditional, libertarian approach to
informed consent. The shortcomings of such an approach and the importance of taking a
relational approach to informed consent have been discussed in other areas of women’s
health.139 While an exhaustive discussion is outside the scope of this article, a relational
approach to consent requires us to also consider the social context and constraints within
which women are choosing to freeze their eggs.
While there are general legal standards governing informed consent, specific guidance
regarding the informed consent process will assist health care professionals in ensuring that
women receive the information needed to make an informed decision. CFAS is well-placed
to provide such information through a clinical practice guideline specific to elective egg
freezing. For example, CFAS has made similar recommendations regarding informed consent
132 SC 2004, c 2, s 8.
133 Patricia Peppin, “Informed Consent” in Downie, Caulfield, & Flood, supra note 83 at 164.
134 White v Turner (1981), 31 OR (2d) 773 at 792–93. See also Skeels Estate v Iwashkiw, 2006 ABQB 335,
[2006] 11 WWR 632 at para 156.
135 Petropanagos et al, supra note 7 at 667–68.
136 Schattman, supra note 4 at 1759.
137 Ibid.
138 ASRM Guidelines, supra note 2 at 42; ESHRE Guidelines, supra note 35 at 1236; Petropanagos, supra
note 7.
139 See e.g. Jocelyn Downie & Jennifer Llewellyn, “Relational Theory & Health Law and Policy” (2008)
Health LJ 193 at 206–207, referring to the efficacy of cardiac care for women. See also Nelson, supra
note 112 at 43–46.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 771
in its clinical practice guideline on third party reproduction.140 In this context, a guideline
would offer useful guidance to practitioners, ensure a consistent approach, and provide
important information for patients and the public.141 The guideline could also be used in the
future to establish binding standards on health care professionals and clinics.
C. FERTILITY EDUCATION, ASSESSMENT,
AND COUNSELLING
High quality fertility education, assessment, and counselling are essential to ensure that
women are able to make well-informed decisions about whether or not to freeze their eggs
for future reproductive use. Yet there are many unanswered questions in this context. What
are the most effective tools to educate the public about elective egg freezing? What are the
best practices for fertility assessment and counselling? Should health care professionals raise
the possibility of elective egg freezing or should patients raise this as an option? To truly
promote women’s reproductive autonomy, it is important to integrate fertility education,
assessment, and counselling within the broader framework of sexual and reproductive health
care in Ontario.
Who should advise women about elective egg freezing and when? Schattman recommends
that women in their early thirties be advised about elective egg freezing.142 CFAS, in its
position statement on elective egg freezing, “recommends education for young women
regarding the effects of aging on fertility and natural conception, as part of routine well-
woman care,”143 but provides few details. And what information should be provided?
Petropanagos et al. recommend “[f]amily physicians should be prepared to provide women
who ask about social egg freezing with accurate and balanced information on safety and
likelihood of a successful outcome, along with similar information about other family-
making choices.”144 In my view, information about elective egg freezing should be included
in broader education initiatives about infertility, contraception, and family planning
generally.
While women are an obvious target audience for education initiatives, I believe it is
equally important that elective egg freezing be included in men’s reproductive health
education. Men may be directly involved in a family building project where cryopreserved
eggs are used; a heterosexual couple may use her cryopreserved eggs, or a single or gay man
may use cryopreserved eggs donated by a third party.145 A man may be in an intimate
relationship with a woman who is considering whether to freeze her eggs for a future
reproductive project. And men play key roles in corporations and governments, which are
responsible for making decisions regarding elective egg freezing, such as whether to offer
140 CFAS Guidelines, Third Party Reproduction, online: <https://cfas.ca/my-account/?redirect_to=/wp-
content/uploads/2016/03/Third-Party-Procreation.pdf>.
141 CFAS Position Statement, supra note 36 provides broad recommendations, but no specific guidelines
on elective egg freezing in Canada.
142 Schattman, supra note 4 at 1756.
143 CFAS Position Statement, supra note 36.
144 Petropanagos et al, supra note 7 at 666.
145 A woman may decide to donate her eggs that she had previously frozen for her own personal u se if she
does not need them or she has completed her reproductive project.
772 ALBERTA LAW REVIEW (2017) 54:3
this as an employee benefit and whether the public should fund assisted human reproduction,
including IVF.146
A key component of the elective egg freezing process is the fertility assessment and the
subsequent counselling. Under what circumstances should a woman undergo a fertility
assessment? Should all women be eligible for a publicly funded fertility assessment at a
certain age? And who should counsel the patient following the assessment? It could be
argued that a fertility specialist, who may benefit financially from a woman’s decision to
freeze her eggs, has a conflict of interest, and so the family doctor may be seen as better
placed to counsel the patient.147 What role, if any, should psychological counselling play in
fertility education and assessments?148
Other jurisdictions offer interesting models. For example, in Denmark, a Fertility
Assessment and Counselling clinic (FAC) offers a free clinical assessment and individual
counselling to men and women with no known reproductive problem.149 The FAC was
developed as an analogy to contraceptive clinics and was created to “prevent infertility and
hopefully diminish the demand for fertility treatments”150 in Finland. In addition to fertility
status and reproductive lifespan, the FAC offers fertility advice to men and women.
Public education about elective egg freezing is critical and is a key source of objective
information about this practice. Greater public education can work to counteract the
persistent, and at times misleading, marketing about elective egg freezing. Various
jurisdictions have undertaken public education and awareness campaigns regarding assisted
human reproduction and elective egg freezing. For example, the HFEA has created a detailed
website with information about risks and benefits, success rates, and the costs associated with
elective egg freezing in the United Kingdom.151 Similarly, VARTA has published
information about elective egg freezing on its website,152 and developed popular fertility
awareness programs that target age-related infertility.153 These public education initiatives
could also play an important role in counteracting the gendered expectations about
motherhood as well as heteronormative assumptions underlying elective egg freezing by
educating the public about other forms of family building like single parenting and adoption.
146 For example, the city of Urayasu, a city outside of Tokyo, has recently decided to launch a pilot program
which subsidizes the cost of women to free their eggs for use in future pregnancies: Justin McCurry,
“Japan’s $1m Fertility Gambit to Help Women Become Mothers,” The Guardian (15 July 2016), online:
<https://www.theguardian.com/world/2016/jul/15/the-right-thing-to-do-japanese-city-to-offer-egg-
freezing-on-public-purse>.
147 Flood & Thomas, “Regulatory Failure,” supra note 82.
148 The CFAS guidelines on Assisted Human Reproduction Counseling may offer assistance, but are only
available to members.
149 Helene W Hvidman et al, “Individual Fertility Assessment and Pro-Fertility Counselling; Should This
Be Offered to Women and Men of Reproductive Age?” (2014) 30:1 Human Reproduction 9.
150 Ibid at 10.
151 HFEA, “Freezing and Storing Eggs,” supra note 119.
152 VARTA, “Social Egg Freezing,” supra note 126.
153 VARTA, Annual Report, supra note 121; Your Fertility, “A Woman’s Age Affects Her Fertility,”
online: <yourfertility.org.au/for-women/age>. The program Your Fertility” has been viewed more than
2.1 million times.
ELECTIVE EGG FREEZING AND WOMENS REPRODUCTIVE AUTONOMY 773
D. CREATING AN EXPERT PANEL ON
ELECTIVE EGG FREEZING
Finally, as with other challenging questions related to infertility and assisted reproduction,
the creation of an expert panel or other body to examine the practice of egg freezing in its
wider social context would provide valuable advice regarding future regulation. We cannot
ignore the social, economic, and political forces that impact a woman’s choice to freeze her
eggs and the reality that not all women have this choice.154 To ensure that elective egg
freezing protects and promotes women’s reproductive autonomy and the health and safety
of women and children, a number of additional regulatory tools may be necessary. An expert
panel, with interdisciplinary expertise, would be well-equipped to undertake this broad
mandate.
The government of Ontario has struck expert panels in the past to provide advice on
important issues relating to assisted reproduction. For example, the Expert Panel on
Infertility and Adoption (Expert Panel) was asked to provide advice on how to improve
Ontario’s adoption system and improve access to fertility monitoring and assisted
reproduction services.155 Similarly, the provincial government struck a panel to assist it in
developing a provincial funding program for infertility services, including IVF.156
Like the Expert Panel, the proposed panel should be charged with a broad mandate to
examine a range of issues (like those described above) relating to elective egg freezing. The
proposed panel should undertake a review of the regulatory tools that currently exist with
respect to elective egg freezing and consider whether they are effective. In addition to the
areas discussed above, the panel should also inquire into other issues such as storage of
frozen eggs157 and potential limits on the marketing of elective egg freezing. For example,
some scholars have argued that “centres that offer elective oocyte cryopreservation should
refrain from specifically targeting those women who are most desperate, namely those older
than 35.”158 Further, the panel should be tasked with considering how to best address the
constraints women are under to realize educational, personal, and professional goals, for
example through improved parental leave policies or more accessible child care programs.
Given the wide range of issues the panel could consider, it would benefit from multi-
disciplinary expertise. A panel composed of a variety of medical specialists (family, fertility
specialists, gynecologists, and obstetricians) as well as psychologists, lawyers, ethicists,
154 See Part IV, above.
155 Ontario, Expert Panel on Infertility and Adoption, Raising Expectations: Recommendations of the Expert
Panel on Infertility and Adoption (Ontario: Ministry of Children and Youth Services, June 2009), online:
<www.children.gov.on.ca/htdocs/English/documents/infertility/RaisingExpectationsEnglish.pdf>.
Recommendation 1.1 provides:
The Government of Ontario should develop a coordinated public education and social awareness
campaign on family building to educate Ontarians about fertility, infertility, assisted reproduction
and adoption, and about the resources and options for building or expanding their families (ibid
at 22 [emphasis in original]).
156 Ontario, Advisory Process for Infertility Services, Key Recommendations Report (Ontario: Minister of
Health and Long-Term Care, 23 June 2015), online: <health.gov.on.ca/en/public/programs/ivf/
docs/ivf_report.pdf>.
157 For example, whether there should be time limits on the storage of frozen eggs as exists in other
jurisdictions like Victoria, Australia. Another pressing issue is the legal approach to the destruction of
abandoned eggs.
158 Mertes & Pennings, supra note 6 at 825.
774 ALBERTA LAW REVIEW (2017) 54:3
social scientists, and patients would enable the panel to address various medical,
psychological, and social aspects of elective egg freezing. In formulating its
recommendations, it would also be useful for the proposed panel to consult with the public,
industry, and other regulatory authorities, such as the CPSO, about a range of issues relating
to elective egg freezing. In addition, this proposed panel should consult the public and others
on these important social, legal, and ethical questions. An interdisciplinary approach to
examining the conditions that allow women to make meaningful decisions about
reproduction and to advise government as to how to design tools to address these conditions
is of utmost importance.
VII. CONCLUSION
There is little doubt that elective egg freezing is on the rise, yet concerns about this new
technology abound. Relatively little is known about its safety and efficacy, there are
questions about how and when women learn about and decide to freeze their eggs, and the
social impact of this technology is far-reaching. To protect and promote informed decision-
making and high quality, safe care, direct regulation of reproductive health care professionals
and clinics offering elective egg freezing is needed. To do so, we should build on the current
regulatory approach and improve the collection and disclosure of information, clarify what
information should be provided to ensure free and informed consent, and develop a
comprehensive approach to fertility education, assessment, and counselling. In addition, we
should create an expert panel to consider the social, economic, and political forces that
impact a woman’s choice to freeze her eggs and offer proposals for future regulatory reform.
These recommendations are mere first steps. We, as a society, must be cognizant of the
context in which women decide to freeze their eggs and we must create conditions that allow
women to make meaningful and autonomous decisions about family building.
... [7, 23,32] 3. Direct public support Prevention of infertility -Many infertility pathologies are due to diseases, environmental factors, harmful habits and aging. Public policy may include: • Epidemiological research. ...
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... Ethical issues that arise in assisted reproductive medicine and fertility preservation have been addressed by various scholars in the past from both normative [9][10][11] and empirical perspectives [12,13]. Underlying norms and value perceptions shape how biomedical innovations such as assisted reproductive technologies are perceived, leading to a diverse set of objections against and arguments for egg freezing that are not without controversy [5,[14][15][16][17]. On the one hand, arguments related to unnaturalness, biomedicalization of a societal problem, and negative impacts on society are complemented by concerns related to the actual performance of the procedure [14,18]. ...
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Background Egg freezing has emerged as a technology of assisted reproductive medicine that allows women to plan for the anticipated loss of fertility and hence to preserve the option to conceive with their own eggs. The technology is surrounded by value-conflicts and is subject to ongoing discussions. This study aims at contributing to the empirical-ethical debate by exploring women’s viewpoints on egg freezing in Austria, where egg freezing for social reasons is currently not allowed. Methods Q-methodology was used to identify prevailing viewpoints on egg freezing. 46 female participants ranked a set of 40 statements onto a 9-column forced choice ranking grid according to the level of agreement. Participants were asked to explain their ranking in a follow-up survey. By-person factor analysis was used to identify distinct viewpoints which were interpreted using both the quantitative and the qualitative data. Results Three distinct viewpoints were identified: (1) “women should decide for themselves” , (2) “we should accept nature but change policy”, and (3) “we need an informed societal debate” . These viewpoints provide insights into how biomedical innovations such as egg freezing are perceived by women in Austria and illustrate the normative tensions regarding such innovations. Conclusions Acknowledging the different prioritizations of values regarding assisted reproductive technologies is important to better understand the underlying normative tensions in a country where egg freezing for social reasons is currently not allowed. The study adds new empirical insights to the ongoing debate by outlining and discussing viewpoints of those directly affected: women. Following up on the lay persons perspective is particularly important in the context of future biomedical innovations that may challenge established norms and create new tensions. It therefore also adds to the societal debate and supports evidence-informed policy making in that regard.
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The common liberal understanding of reproductive autonomy – characterized by free choice and a principle of non-interference – serves as a useful way to analyse the normative appeal of having certain choices open to people in the reproductive realm, especially for issues like abortion rights. However, this liberal reading of reproductive autonomy only offers us a limited ethical understanding of what is at stake in many kinds of reproductive choices, particularly when it comes to different uses of reproductive technologies and third-party reproduction. This is because the liberal framework does not fully capture who benefits from which reproductive options, the extent of the risks and harms involved in various reproductive interventions, and the reasons for why people are driven to make certain reproductive choices.
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This article discusses donor anonymity in Canada and the need for law reform in this area. Currently, assisted reproduction is regulated by both the provincial and federal governments, meaning this area is regulated in a piecemeal fashion. Disclosure of donor identifying and non-identifying factors is restricted to limited information, utilized only to keep statistical records. Due to the law limiting identifying information, donor-conceived persons struggle in their attempt to discover their genetic origins. Further, provincial family law does not recognize third party reproduction, which leaves modern family units unprotected. A definition of openness in gamete donation is given in Part II. Part III addresses the law-making and assisted reproduction difficulties arising from the division of powers. Part IV analyzes the potential impact of federal prohibitions on the purchase of sperm and eggs and whether disclosing a donor’s identity will negatively impact gamete supply in Canada. The final two sections discuss the failure of provinces to enact family laws which protect the parental status of intended parents and how past cases under the Canadian Charter of Rights and Freedoms have been challenging for donor-conceived persons. The authors propose that reform should be dealt with by the legislature in four areas: provincial family law reform where necessary; robust and meaningful public consultation; interprovincial cooperation if possible; and, consideration of law reform in other jurisdictions
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It’s time to stop fooling ourselves, says a woman who left a position of power: the women who have managed to be both mothers and top professionals are superhuman, rich, or self-employed. If we truly believe in equal opportunity for all women, here’s what has to change.
Later, Baby: Will Freezing Your Eggs Free Your Career?
  • Emma Rosenblum
Emma Rosenblum, "Later, Baby: Will Freezing Your Eggs Free Your Career?" Bloomberg (17 April 2014), online: <www.bloomberg.com/news/articles/2014-04-17/new-egg-freezing-technology-easeswomens-career-family-angst>.
We Need to Talk, " supra note 25
  • Richards
Richards, " We Need to Talk, " supra note 25. 132 SC 2004, c 2, s 8.
Relational Theory & Health Law and Policy " (2008) Health LJ 193 at 206–207, referring to the efficacy of cardiac care for women. See also Nelson, supra note
  • Jennifer Llewellyn
See e.g. Jocelyn Downie & Jennifer Llewellyn, " Relational Theory & Health Law and Policy " (2008) Health LJ 193 at 206–207, referring to the efficacy of cardiac care for women. See also Nelson, supra note 112 at 43–46.
We Need To Talk About Our Eggs
  • Sarah Elizabeth Richards
Sarah Elizabeth Richards, "We Need To Talk About Our Eggs," The New York Times (22 October 2012), online: <www.nytimes.com/2012/10/23/opinion/we-need-to-talk-about-our-eggs.html> [Richards, "We Need to Talk"]. See also Sarah Elizabeth Richards, Motherhood, Rescheduled: The New Frontier of Egg Freezing and the Women Who Tried It (New York: Simon & Schuster, 2013);
online: <www.wsj.com/articles/SB10001424127887323628004578458882165244260>; Srinivas, supra note 19
  • Sarah Elizabeth Richards
Sarah Elizabeth Richards, "Why I Froze My Eggs (And You Should, Too)," The Wall Street Journal (3 May 2013), online: <www.wsj.com/articles/SB10001424127887323628004578458882165244260>; Srinivas, supra note 19; Bennett, supra note 3;
31 OR (2d) 773 at 792-93. See also Skeels Estate v Iwashkiw
  • Turner White V
White v Turner (1981), 31 OR (2d) 773 at 792-93. See also Skeels Estate v Iwashkiw, 2006 ABQB 335, [2006] 11 WWR 632 at para 156.