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Fertility lawyers press ahead despite legal vacuum

|Written By Michael McKiernan

As the confusing state of the law governing reproductive issues hasn’t put off Canadians from seeking technological help to have children, at least two Ontario lawyers are forging careers in the area with practices devoted to helping people through the process.

Sara Cohen’s fascination with fertility law began while she was in law school.

They’re soldiering on despite legal setbacks in the area. A December 2010 Supreme Court of Canada ruling, for example, gutted the federal Assisted Human Reproduction Act for straying into provincial jurisdiction. In the meantime, Assisted Human Reproduction Canada, the agency created to enforce the law, is going to disappear in 2013 after a funding cut in the most recent federal budget.

“I love what I do, but practising under this law is terrible,” says Toronto lawyer Sara Cohen. “I don’t think there’s anyone who likes it.”

Even the parts of the law that remain standing involve vagueness. The act prohibits intended parents from paying a surrogate to carry a child. They can reimburse expenses, but the government never enacted regulations to provide guidance on what constitutes a reasonable expense.

“It’s been eight years, and I don’t expect to see them in my lifetime,” says Sherry Levitan, who also operates a sole practice in Toronto.

“All I can do is lay it out for a client, and they can tell me where their comfort level is.”

Despite high demand for fertility lawyers, the field is suffering growing pains.

Levitan has been involved in the fertility field since 1991 when, as a commercial leasing lawyer, she represented the founders of one of the first in vitro fertilization clinics in Toronto.

After sitting in on business meetings, she began drafting consent forms for clinic patients and eventually opened a solo practice representing intended parents, surrogates, gamete donors, and clinics.

Cohen developed her fascination with fertility law during her time at Osgoode Hall Law School, which coincided with the act’s progress through Parliament. She took every chance she could to write on the subject. After her call to the bar in 2007, she practised commercial litigation before returning to her first legal love at a small firm in 2011 following the birth of her son.

“Until a year ago, it was a lovely area of law to practise in,” says Levitan, who in January accused Cohen of trademark infringement by using the web address fertilitylawcanada.com. “There was a very small group of lawyers who worked together very well and all knew each other.”

Levitan complained to the National Arbitration Forum, the body responsible for resolving international domain name disputes, with a claim for common law trademark rights to the terms “fertility law” and “fertilitylaw.ca,” the address of her own web site. Levitan asked the forum panel to turn Cohen’s domain name over to her.

In her response to the complaint, Cohen hit back and accused Levitan of an attempted “reverse domain-name hijacking” by knowingly making an unmeritorious claim for her web site.

In a March 14 decision, the forum panel sided with Cohen. It rejected Levitan’s arguments that the area should be properly called “advanced human reproductive law” and that she had become uniquely known as the “fertility lawyer.”

“Complainant’s contentions regarding the nomenclature of areas of legal practice in Canada do not change the fact that the expression ‘fertility law’ is an ordinary combination of two dictionary words entirely apt to designate that field of law dealing concerned with assisted reproductive technologies,” the panel noted.

“Such a common usage extends not only to Canada but to the rest of the English-speaking world. That there is evidence of third-party use of ‘fertility law’ in a generic and descriptive manner; and that there is sorely lacking proof of acquired distinctiveness through use, leads panel to conclude that complainant does not hold any unregistered trade mark in Canada (or anywhere else) or either fertilitylaw.ca and fertility law and so has not shown trademark rights for the purpose of paragraph 4(a)(i) of the policy.”

Given that Levitan is a lawyer, the panel said it had “some sympathy” for the idea that she should have known Cohen had a legitimate right to the domain name. But in the absence of harassing behaviour, it was unable to make a finding of reverse domain-name hijacking.

“The panel finds no clear indications of harassment or persistent bad behaviour on the part of complainant and on a balance of the evidence in these proceedings finds it more likely than not that complainant ill-conceived the scope of its monopoly in the expression ‘fertility law’ rather than commenced and persisted with the complaint with malicious intent,” the decision noted.

Levitan says the panel got it wrong and is still mulling her next move.

“I feel like I have a big target on my back, which I don’t enjoy. It’s very aggravating. She’s trying to take a shortcut. I’ve been in the field since 1991 and 20 years of experience should count for something.

I don’t think it’s fair that she tries to gain attention and credibility by choosing a domain name that is so close to the leading lawyer in the area in the country.”

Cohen says she was satisfied with the panel decision and takes offence to Levitan’s comments.

“I use the term ‘fertility law’ to describe what I do, as do many other fertility lawyers,” she says.

“Anyone who knows me, within the fertility law sphere and without, knows how much blood, sweat, and tears I have put into my practice. There are no shortcuts to any success that I have had thus far. I credit any success to my hard work, passion, and compassion for my clients.”

She says she hopes the episode is at an end and would like to move on.

“I have never worked with Ms. Levitan. However, my experience with the other lawyers in the area has been nothing short of a pleasure. I have strong and friendly relationships with the other fertility law lawyers in the country as well as internationally. Every day, I get to help people build families. What could be better?

“It is unfortunate that this dispute occurred. Further, it is unfortunate that this dispute has now become public knowledge. Despite being successful against Ms. Levitan’s complaint, I did not publicize the result or the dispute because I do not think that a business dispute between lawyers is good for the image of the profession in the public eye.”

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