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5 Questions with Leading Canadian Fertility Lawyers Sara R. Cohen & Ellen K. Embury

February 25, 2022

Evelyn Shaller-Auslander

Leading Canadian fertility lawyers Sara R. Cohen and Ellen K. Embury are the program chairs of our biennial Fertility Law one-day intensive conference. Sara R. Cohen is the owner of Fertility Law Canada™ at D2Law LLP in Toronto, Ontario, and Ellen K. Embury is a partner at Carbert Waite LLP in Calgary, Alberta. We had a discussion with Sara and Ellen to learn more about their backgrounds as well as this year’s program: Fertility Law: Critical and Emerging Issues.

What is your professional background, and how did you get involved with speaking about fertility law?

Ellen: I was called to the Ontario Bar in 2000, and I moved to Alberta in 2003. Initially I started doing insurance work, and about 15 years ago I fell into the fertility law world. I thought that it was incredibly interesting and exciting, and it had the unique ability of being “happy law,” which is not something that all lawyers get to experience regularly. Since 2005, I have split my practice between fertility law, employment law and commercial litigation.

Sara: I worked at a fertility clinic when I was an undergrad helping to do some research at Princeton University on contraceptive and reproductive technologies and the policy behind it. Then, when I was in law school, I literally wrote any paper I could on this topic because I was fascinated. When I became a lawyer, I had a commercial litigation practice at the biggest firm in the country (at the time). Then I went through my own fertility issues, which was very emotional for me. I decided that when going back to work, I wanted to help people and do something that was meaningful to me. Like Ellen said, I think we get to do “happy law,” and we really make a difference in people’s lives. I have been doing this for 12 years, and 100% of my practice is in the fertility law space. I passionately love what I do.

How has the Fertility Law program changed over the years, and what is unique about this year’s program?

Sara: Fertility Law changes constantly. Part of the reason it changes is that the technologies constantly change, as well as society and its openness to recognize conceiving through third production. Because of that, I think the provincial laws that recognize parentage are always moving – and thank goodness – because they’re becoming better and better all the time. We got regulations recently to The Assisted Human Reproduction Act, and I think Health Canada took a lot more progressive views than many of us (including myself) anticipated.

What is unique about this year’s program? I’m going to be honest; this program is always excellent. Both of us are quite proud of it on a regular basis. I think it’s always extremely current. There’s starting to be more and more caselaw in the fertility law sphere, which is really important to discuss. Many provinces now recognize polyamorous and multiparent families, so I’m personally quite excited about how progressive fertility law has become, and that’s something new we’re discussing this year.

Ellen: I absolutely agree with Sara. The first year that we did this conference was in 2014, and we run it every other year so we’re now on our fourth conference. In the first iteration, I was forced to say things like “avoid the province of Manitoba,” and we no longer have to say that because the group of practitioners who attended this conference took those comments seriously and were able to enact change in those provinces. As recently as 10 years ago, we had provincial governments who were discriminating against either the infertile or same-sex couples by making it difficult for their parentage to be recognized outside of a traditional adoption, and that has had a complete turnaround throughout most of the country.

When we were drafting contracts 10 years ago there would be a list of provinces that we wanted to ensure the surrogate didn’t go to. We sometimes had to send surrogates out of a province, including my own province of Alberta, in order to have them birthed. Those laws have all changed, and I don’t know if it has anything to do with this conference, but the professionals who are interested in making change attend this conference and then they go back and do lobbying with their provincial governments or with the Canadian Bar Association (CBA), so Sara and I are both really excited to be a part of that.

Who would this program be beneficial for?

Ellen: The program is going to be beneficial for lawyers who practice in the area of surrogacy law, and I always believe that it is useful for family lawyers to understand that these issues exist, and for wills and estates lawyers to understand some of the interesting issues that happen around third-party reproduction and family creation. There will also be topics discussed at this year’s conference related to death and what happens to human reproductive material after death, and those are things that wills and estates lawyers and family lawyers typically have an interest in. It is also going to be beneficial for clinics and agencies in making sure that they are compliant with the law.

Sara: This is also an excellent opportunity as a space to learn about fertility law. When we first started this conference, there really wasn’t anything out there that gave people an opportunity both to learn and discuss concepts and concerns with other people practicing in the area, so it’s a great opportunity for those who are interested in practicing in fertility law but don’t know where to begin. It’s one of the only programs out there – if not the only one – that has cross-Canada analysis included in the program.

What do you think sets this program apart from other resources people have?

Sara: I do not think there is a program like this anywhere else in Canada. To have a cross-Canada perspective of fertility law is unique and exciting, and extremely important because fertility law is very trans-provincial; we very frequently see people who are engaging with a donor or a surrogate in a different province from where they live, and in every province the question of who is a parent is answered differently. This is the only opportunity I’m aware of to come together, hear different concepts and concerns, and learn from lawyers across the country. It’s a completely unique, groundbreaking program that goes through all of the issues in fertility law.

Ellen: What I would add is that not only is surrogacy and fertility cross-provincial, but it’s also international. I am very proud of the fact that Canada is one of the few countries in the world that offers safe legal surrogacy, particularly in the same-sex community. There are large areas of the world where it is not safe for same-sex couples to have a baby, and it is safe in Canada. This is something that people should know about and celebrate, and this is the forum in which we talk about the protections that have been put in place for the Canadian healthcare system, practices amongst lawyers, and issues related to international surrogacy in Canada.

Is there anything else you’d like to add?

Sara: Come join us. I really believe in this program; I think it’s fantastic. I would also tell people to plan on this; plan on attending every other year, because there’s always something very different. Trans-provincial analysis happens every year, but sometimes we bring in wills and estates perspectives, and this year we’re bringing in immigration and polyamorous perspectives, so every year there’s something different. Every year there’s something to learn and I can’t wait to participate and learn with you.

Ellen: People struggle with infertility a lot more than people may expect, and this is an issue that touches many different practice areas and lives. Those of us who do this care about it a lot, and we look forward to getting perspectives from outside of the fertility law community as we learn from others.

Fertility Law: Critical and Emerging Issues takes place live online Monday February 28, 2022, from 9:00 a.m. to 4:30 p.m. ET. There will be an online replay Tuesday March 29, 2022, from 9:00 a.m. to 4:30 p.m. ET.