Toronto Star

Fertility clinics need improved oversight

- JOYCE GHALY CONTRIBUTO­R JOYCE GHALY IS A JURIS DOCTOR CANDIDATE (2024) AT THE UNIVERSITY OF OTTAWA.

The journey of infertilit­y is emotional and our regulatory system in Ontario makes it worse. This industry’s growth has outpaced the developmen­t of fitting legislativ­e action.

Ontario is exercising a laissezfai­re approach in regard to fertility clinics with very limited oversight on their operations. They’re essentiall­y being treated as private businesses rather than health care providers. Consequent­ly, clinics are operating in a regulatory blind-spot starting from when they obtain patient consent, through the handling and storage of genetic material and extending beyond.

This is causing tangible harm. Consider the notorious Barwin case, where an Ontario fertility doctor intentiona­lly inseminate­d women with the wrong sperm, including his own. The class action involved over 200 plaintiffs and settled for $13.3 million, a sum not paid by Barwin but rather by the Canadian Medical Protective Associatio­n (CMPA). The CMPA is funded by doctors, then doctors are reimbursed by the province. Essentiall­y, Ontario taxpayers end up paying for Barwin’s actions.

Let’s go back to the beginning. The Assisted Human Reproducti­on Act was Canada’s first attempt at regulating fertility treatments, but it lost its effect when multiple sections were declared unconstitu­tional, thereby transferri­ng the duty of regulation to provinces.

The conversati­on gets interestin­g when discussing private fertility clinics as they operate in this regulatory void. They often escape rigorous scrutiny, subject only to a program that audits procedures using anesthesia. Thus, treatments not involving anesthesia face even less regulation.

Truthfully, the industry has been commercial­ized. Private clinics have the freedom to slap on hefty price tags on procedures. A single IVF cycle will cost between $9,000 to $15,000 and the medication required will range between $5,000 and $15,000.

Fertility clinics have now standardiz­ed “add-on” procedures, such as intracytop­lasmic sperm injection (ICSI), adding approximat­ely $3,000 to the treatment. ICSI’s efficacy and necessity are not nearly as well studied as they should be, yet it’s frequently recommende­d, thereby raising costs without guaranteed improvemen­t in outcomes. OHIP covers one cycle of IVF; however, generally, one cycle is not enough.

Additional­ly, in order to receive informed consent, doctors must disclose to patients the risks, benefits, and alternativ­es associated with any treatment. But how can fertility doctors obtain true informed consent for procedures like ICSI when doctors themselves lack comprehens­ive knowledge of the risks and benefits, given the procedure is not well studied?

The repercussi­ons of these regulatory shortcomin­gs aren’t just about money; the emotional and mental toll on patients when treatments fail can be brutal. Even more so when these issues could have been prevented or stem from unethical practices.

To illustrate, I recently worked on a case where clients informed my superior that the fertility clinic they had been patients at had simply lost their embryos. As we spoke about the potential legal avenues to pursue, we asked ourselves, “how do we even begin legal proceeding­s for this issue?”

The sad reality is that stories of mix-ups with genetic material or losing embryos due to equipment failures are common. A stark example came about in 2018 where a woman in Toronto lost 65 frozen eggs due to the malfunctio­n of a cryogenic storage tank. Such incidents would be significan­tly less common if the industry was stringentl­y regulated.

The current state of this industry is treating private for-profit clinics as a “buyer beware” situation. The Assisted Human Reproducti­on Act must undergo amendments to rectify existing deficienci­es.

We need to introduce mandatory licensing enforced by a new regulatory body overseeing staff qualificat­ions and operationa­l standards, alongside transparen­t disclosure of success rates, safety data and adverse events for industry accountabi­lity and transparen­cy. Ontario must adopt legislatio­n to protect and empower patients.

 ?? DREAMSTIME TRIBUNE NEWS SERVICE ?? The state of the fertility industry includes treating private for-profit clinics as a “buyer beware” situation, Joyce Ghaly writes, and it is imperative that the Assisted Human Reproducti­on Act undergo changes.
DREAMSTIME TRIBUNE NEWS SERVICE The state of the fertility industry includes treating private for-profit clinics as a “buyer beware” situation, Joyce Ghaly writes, and it is imperative that the Assisted Human Reproducti­on Act undergo changes.

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