A federal politician is finally making a serious attempt to address the shortcomings of Canada’s Assisted Human Reproduction Act. While the act was intended to protect those who participate in assisted human reproduction from exploitation, its effect has been the opposite. The act arbitrarily denies surrogates compensation and compromises the effectiveness of the professional advice they receive. It also creates costs and multiplies inconvenience without any resulting benefits for quality control or risk management. In fact, the federal law compromises these controls and increases risk for surrogate mothers, gamete donors, intended parents and the children conceived through these processes.
The Supreme Court of Canada left the federal Assisted Human Reproduction Act in tatters when it advised in 2010 that many of the act’s provisions improperly encroached on provincial jurisdiction over regulating medical care and “private matters.” The only sections of the act to survive contained criminal prohibitions. Since then, few federal politicians have turned their minds to whether these sections still make sense in the absence of a regulatory framework until rookie Liberal MP Anthony Housefather recently came forward to take on this work.
Housefather asserts that would-be parents should be able to compensate Canadian surrogate mothers and egg and sperm donors for their time and trouble and that surrogacy agencies should be permitted to charge match-making fees. It is currently a criminal act to offer compensation for surrogacy, gamete donation or matching. Housefather plans to introduce a private member’s bill repealing these prohibitions before Parliament later this week.
Some people justify criminal prohibitions on payment as the best way to avoid exploiting women. Their fear is that economically vulnerable women will be attracted or pushed toward surrogacy in order to reap a financial reward.
This has not happened in the American states that permit commercial surrogacy. Good screening mechanisms eliminate women who are not strongly motivated by the desire to help others achieve their dream of a family. As long as this desire is present, why shouldn’t women also be compensated? And why shouldn’t surrogacy agencies be compensated for developing and administering screening tests and finding good matches as between egg and sperm donors, surrogate mothers and intended parents.
Finally, there is the obvious irony of paying the lawyers and doctors but not paying the person — the surrogate mother — who is most inconvenienced, in order to ensure that she is not exploited.
In addition to good screening, the best way to ensure that surrogate mothers are not exploited by intended parents or others is to give them the medical and legal information they need to make informed, autonomous decisions.
The current criminal prohibitions make it difficult for participants to have full and frank discussions or even to access basic services and advice. The rules on which services surrogacy agencies can provide for a fee are almost incomprehensible. Lawyers want nothing to do with monitoring expense reimbursement. They do not even want to manage a trust account through which such payments could flow because the current federal rules on permissible reimbursement are so unclear.
Criminal prohibitions on paying sperm and egg donors have not resulted in improved screening of sperm or egg donations, nor have they helped egg donors become better informed about the risks. Instead, the federal law has made it much more costly, risky and time-consuming to get sperm and eggs. As Canada now has only one sperm bank, most sperm used here is shipped from the U.S. American sperm donors have been paid, since the Canadian prohibition does not apply to activities outside of Canada. Meanwhile, Canadian regulators and would-be parents can’t do much about quality control of imported sperm.
Canadian prohibitions on paying egg donors can also be avoided if the retrieval procedure is performed in the U.S. Consequently, Canadian egg donors simply cross the border and make the donation in the U.S., where the activity is legal. The creation of a sperm or egg donor registry fades further into the distance when the egg and sperm donors have no connection to Canada.
If federal laws prohibiting payment for surrogacy, egg and sperm donation and agency services are repealed, the residual federal power to regulate in this area would be limited. The federal government would retain control over citizenship and immigration, especially issues related to obtaining passports for babies born in Canada to surrogates for intended parents who are not Canadian residents and for babies born to surrogates outside Canada intended for Canadian parents. But most of regulatory power would be exercised by provincial governments. Ideally, they would become more active on matters relating to professional practice standards (including, for example, information retention, screening protocols and acceptable numbers of embryo transfers), parentage law, surrogacy arrangement terms (e.g., enforceability, consent to share health-care information), donor registries and recovery of health-care costs from non-residents who engage Canadian surrogates. Some aspects of provincial regulatory regimes have already emerged through voluntary clinical guidelines or judicial rulings and will continue to be refined especially in those jurisdictions where legislatures have not taken a leadership role.
Laws connected to assisted human reproduction are complex and touch on many areas. Appropriate responses are impossible to achieve solely through the heavy hand of criminal law, so Housefather’s anticipated move is a welcome first step toward better assisted reproduction law and practice in Canada.