Shawn Winsor

How young is too young to make decisions about your reproductive health?

Early in my career, a case brought to my ethics committee told the story of a 19 year old woman asked by her infertile mother to donate eggs so they could be impregnated with the sperm of her mother’s new husband. Among the host of ethical issues, the young woman’s age was a significant talking point among committee members because it complicated their concerns about whether her consent was coerced; that is, was her mother pressuring her to do this? Local law was only moderately helpful. Ontario’s Health Care Consent Act does not provide a minimum age per se for autonomous consent but in de facto – if not de jure – terms that age is 18 as that is when someone can still consent to medical treatment without the involvement of a third party if the treatment provider deems her/him capable. So, by this criterion, the woman in our case was capable, absent a non-age related reason to question her capacity to make an informed decision.

Yet, despite the law’s blessing, many on the committee struggled; not because they saw her age as a bright line for questioning her decision-making capacity in all medical procedures just those related to her reproductive life and health. It was felt that decisions there require a maturity that comes from lived experience that cannot be assumed present in someone as young as 19 years old. I also heard this perspective shared on research ethics boards that handled oncology trials: 19 years old was not an age that received special attention except when it came to procedures that impacted subjects’ reproductive life; e.g., undergoing a chemotherapy treatment that had a high risk of making the subject infertile.

The scenario before our ethics committee is no longer novel. In the past decade, women as young as 19 years old have been the target of agencies seeking egg donors to supply clients of IVF clinics. They are approached via social media sites like Facebook and Twitter and invited to donate their eggs for money; as much as $5,000 per donation.[i] Unlike with sperm, however, egg donation is an invasive procedure that can result in serious complications, including sterility and even death.

If a bright line older than 19 years old were to be drawn for a reproductive procedure like egg donation for compensation not personal use, what criteria would you choose to select it ?

Let’s return to the original belief shared by committee members: the necessity that an egg donor be mature, because maturity is developed through life experiences that prepare you for the uniquely complex scenarios that occur in our reproductive lives and the decisions they require.

There are a number of ways of looking at this. We could determine maturity by considering the kind of tasks given or offered individuals by their community that are seen to have significant responsibility associated with them, not just for their impact on the holder but for others in the community as well. For example, the opportunity to vote for the people who will represent you and others in government, and to serve in the armed forces through enlistment or draft. In Canada, both of these are conferred on citizens 18 years and older. Marriage is another such responsibility, and its minimum age is also 18 years old. A responsibility with greater direct impact, but more narrowly applied, is to act as a substitute decision maker for an incapable person and make life and death decisions on their behalf. In Ontario, this can be conferred on someone as young as 16 years old. Examples that have not been legislated into existence could include holding down a job, pursuing post-secondary education, dating and experiencing romance, and living independently.

A problem with this kind of criterion is it identifies the minimum age at which someone can assume the given responsibility so does not cover the experience of having attempted to meet it. It is easy to imagine the unlikelihood of any group of people reaching an agreement on which of these should apply to donors and how far along in any them that donor must have gone before having been said to have gained the requisite experience benefit. Each of our answers will be highly informed by our own personal experiences. If applied to the young woman’s case, this would make the committee’s decision-making process less about her as an egg donor and more about the committee members’ personal experiences.

Another way to look at maturity is via biology, specifically brain development markers that indicate when our brains are capable of “executive functioning”; that is, reasoning through options, identifying what is right and wrong, imagining consequences and comparing them against one’s own interests. These abilities match well to successfully meeting the responsibilities I outlined early, which is why linking biological development to decision-making ability, and therefore to the rightful assumption of duties and responsibilities, is practiced in many places, if not also formally enshrined there in law.

But identifying what is called species-typical functioning like executive decision-making from a biological perspective does not easily correlate to age markers. In fact, it is as strongly determined, if not moreso, by contextual factors like culture and geography because several of the animating concepts at play here – right and wrong, personal interests – are value-based and not biologically determined, and so vary from one community to another.

Which brings us back to the beginning and why it is so difficult to provide a bright line age cut off that works. The (arguably) low cut offs we see in law for health-related decision making shows that policymakers lack confidence in one-sized-fits-all limits that rely on criteria like life experience and biological development because their intrinsic subjectivity, inherent variability, and lack of contextual considerations render them unusable when linked to one age. But this is a matter of the wrong job for the tool: the tool itself just needs to be appropriately applied. In our case, that is in the consent discussion clinicians have with their patients. There the clinician considers both life experience and executive function (i.e. capacity), but on the patient’s terms, in assessing whether that patient understands the information provided him/her and is able to appreciate the reasonably foreseeable consequences of accepting or refusing the treatment being offered. To do otherwise, by determining a patient is incapable of making a health decision for themselves because of a specific age, is to restrict their rights and freedoms, change their moral and legal status, and significantly impact their quality of life – even their life itself. Our society provides this power to render someone incapable only in very select circumstances, and almost exclusively in those involving a threat of harm to another person. Therefore, deeming entire groups of people unfit to make health decisions for themselves based on a single criterion, like age, is rarely done.

The physician in our case referred the young woman to us because he was concerned her age revealed she may be too immature to resist coercion by her mother, but he had not yet interviewed her without her mother and stepfather present.  The committee recommended he do this and apply the consent question criteria identified earlier: Does she understand the relevant information and can she apply it to her own life circumstances? The physician met with the young woman shortly after. At our next ethics committee meeting he reported that he took her through the consent procedure and, based on their discussion, deemed her capable of deciding whether to donate her eggs. She told him at the conclusion of their meeting that she was not going to proceed with the donation.

[i] Motluk, A.  Ads that target young women. August 25, 2020. HeyReprotech Newsletter.

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