by Written on behalf of Wise Health Law August 08, 2018 4 min read

A 39-year old single mother and a Toronto couple have filed claims against a fertility clinic in Etobicoke claiming that the facility is responsible for the loss of dozens of eggs and embryos that they had stored there. The lawsuits highlight some gaps in the current oversight of such clinics.

The Woman’s Claim

In early 2018, the woman spent approximately $10,000 to have 65 eggs removed and stored at the clinic in west Toronto. The eggs were stored in a cryogenic tank at the facility, which, unfortunately, malfunctioned earlier this year destroying all of the eggs. The lawsuit names the clinic, the clinic’s medical director, several staff members, the U.S. manufacturer of the cryogenic tanks used in the clinic, and the Canadian distributor of the cryogenic tanks. Among other claims, it alleges that the clinic failed to inspect, test, and monitor the tanks, and also failed to install alarm systems that would alert staff to tank malfunctions. The woman’s claim states:
breached the duties owed to the ReproMed clients — failing to exercise the skill, knowledge and judgment of ordinary and prudent health care professionals working with irreplaceable biological material in a fertility clinic setting.
She notes that the destruction of the eggs is the “end of a dream” for her. While the clinic has offered to retrieve more of her eggs for free, she says that the process of doing so (including daily injections, blood tests, and other exams) is not one that she is physically or emotionally ready to handle a second time. The woman and her legal counsel believe that the lawsuit highlights the need for better regulation of the Canadian fertility industry, which they say lack the oversight and accountability in place for other medical services. The woman is seeking $27.5 million in damages.

The Couple’s Claim

The couple, who wish to remain anonymous, were informed in late May of this year that one of the cryogenic tanks at the facility in question had malfunctioned and, as a result, their 9 embryos and 15 eggs were deemed “likely not viable”. Like the woman, the couple names the clinic, its medical director, and two other organizations as defendants. They are seeking damages for negligence, breach of contract, and breach of fiduciary duty. They seek to proceed by way of a class-action on their behalf and on behalf of any other affected individuals. The couple claims that when they learned of the malfunction they “instantly grieved the loss of the family we envisioned.” They say that the clinic offered them the chance to have another round of IVF and egg storage for free, but that this was not sufficient compensation for what happened to them.

Current Canadian Regulations

Dr. Heather Shapiro, a fertility specialist at Toronto’s Mount Sinai Hospital, told CBC News that there is currently no uniform or federal oversight of fertility care in Canada. According to Dr. Shapiro, the Canadian Fertility & Andrology Society, which represents fertility professionals, does provide guidelines but has no mechanism in place to ensure they are being followed. Instead, fertility services in hospitals are subject to the general oversight policies and procedures of that institution (with some hospitals developing specialized guidelines specific to fertility units). Private clinics do not have this level of oversight.

Provincial Oversight

In 2015, Ontario’s Ministry of Health requested that the College of Physicians and Surgeons (CPSO) to develop and implement a regulatory framework for fertility services in non-hospital clinics. At the moment, the CPSO only has the authority to inspect private clinics if they use anesthesia (this includes only clinics who perform the egg retrieval component of the IVF procedure since that is when anesthetics are used). In 2017, the CPSO submitted a proposal to the Ministry of Health requesting the authority to assess any facility that performs IVF, artificial insemination, or the cryopreservation of sperm and eggs. The Ministry of Health provided the CPSO with formal comments in July 2018.

Federal Oversight

Federally, Health Canada has the authority to inspect facilities and clinics that collect, store, or test semen donations, but they focus primarily on reducing the potential spread of infectious disease in situations where a woman obtains a sperm donation from a stranger. There are currently no federal regulatory requirements for similar inspection of donated eggs or facilities that store these eggs. Prior to October 1, 2012, Assisted Human Reproduction Canada (AHRC), a federal agency, was responsible for overseeing the Assisted Human Reproduction Act(introduced in 2004) and for developing related policy and regulations. In 2012, the federal government announced that it would “wind down” the agency, in response to a 2010 Supreme Court of Canada decision that significantly reduced the federal role in assisted human reproduction. Currently Health Canada is responsible for some of those functions. A Health Canada spokesperson told CBC News that the federal government is now working on draft regulations that revive some of the oversight formerly in place. We will continue to follow developments in these cases as they proceed, and in the regulations being drafted, and will provide updates as they become available. At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.

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