In Canada, it’s illegal to pay for the services of a surrogate mother or to purchase human gametes — sperm and eggs. These prohibitions are entrenched in the Assisted Human Reproduction Act. Some Liberal members of Parliament want to change this.
Anthony Housefather, MP for Mount Royal and chair of the House of Commons Standing Committee on Justice and Human Rights, recently held a news conference to announce that he plans to introduce a private member’s bill to remove the legal prohibitions on payments.
Flanked by fertility doctors, lawyers, intended parents, surrogates and fertility agents, Housefather argued that Canadians should be able to pay — and be paid — for surrogacy, as well as human sperm and eggs.
‘Sound ethical reasons’
At the outset, it’s important to remember there are sound ethical reasons to prohibit “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends,” as stated in the Assisted Human Reproduction Act.
Among these reasons are the need to avoid both the commodification of the human body and the twin risks of exploitation and coercion. That’s why the federal government introduced criminal prohibitions on payment for surrogacy as well as human sperm and eggs in 2004.
Why criminal prohibitions? Because according to our Constitution, the only mechanism available to the federal government to enforce a ban on payment is criminal law. The division of powers between the federal and provincial governments is such that health is a provincial responsibility and criminal law is a federal responsibility.
The Assisted Human Reproduction Act was carefully drafted to ensure that access to reproductive technologies would not be a gateway to commerce in the body. This was a challenging piece of legislation to craft, involving considerable study, consultation and compromise.
The process began in the mid-1980s with the call for a Royal Commission on New Reproductive Technologies and continued through the 1990s and into the 2000s. It included numerous consultations with stakeholders and the public, several failed attempts at legislation and very careful consideration of how this issue should move forward.
When the act finally passed 14 years ago, there was all-party agreement that payment for surrogacy and sperm and eggs was not the way forward.
Housefather suggests that the act is outdated; that it did not anticipate the creation of non-traditional families. But this is inaccurate.
Réal Ménard, for example, one of the first openly gay MPs, worked with members of the LGBTQ community to ensure that sexual orientation would not be a barrier to access. It’s important not to ignore or misrepresent the intense challenges of a legislative process that was nearly 30 years in the making.
Housefather also suggests that Canadian values have changed since the act came into force. However, recent public commitment to keeping payment out of the blood supply system indicates that Canadian values about payment for bodily tissues may not have changed all that much.
The Assisted Human Reproduction Act permits reimbursement of receipted expenditures for surrogates and gamete donors in accordance with regulations. The problem with this feature of the act, however, is that there are no published regulations. This is finally about to change.
After many years of inaction, Health Canada has made a public commitment to strengthen the Assisted Human Reproduction Act that includes drafting the regulations for reimbursement.
These long-anticipated regulations will provide much-needed clarity and transparency. Housefather’s proposed bill will undermine the development of the regulations by attempting to eliminate the framework for reimbursement completely.
The federal government has an obligation to address the health and safety of surrogates, sperm donors and egg donors. It also has an obligation to provide clear regulations on reimbursement of expenditures so that Canadians who want to use surrogates and donor sperm and eggs can do so without running afoul of the law.
The governance of assisted human reproduction is too important to the future of Canadian families to be undermined by a private member’s bill calling for an open market in human reproduction.
Françoise Baylis is a professor and Canada Research Chair in Bioethics and Philosophy at Dalhousie University and Alana Cattapan is an assistant professor at Johnson Shoyama Graduate School of Public Policy at the University of Saskatchewan.
Read more about Alana Cattapan's research.