Demands for Canada’s fertility laws to be re-examined

In a position statement released on May 11 concerning sections six and seven of the 2004 Assisted Human Reproduction Act, the Canadian Fertility and Andrology Society called on the federal government to legalize the payment of surrogates and egg and sperm donors, though board member Sherry Levitan suggests placing a cap on how much money surrogates or donors can receive. The position statement uses the term “reasonable compensation,” which the society says “helps prevent abuses, ensures fairness and transparency, and improves access to care for those seeking third party reproduction.” The CFAS seems to concede that there is an illegal market in paid surrogacy in Canada.

The statement was in response to a Health Canada announcement last September that it plans to bring into force sections 10, 12, and 45 to 58 of the AHRA and to create supporting regulations when necessary. In 2010, the Supreme Court of Canada had ruled that many sections of the act infringed upon provincial jurisdiction and were thus unconstitutional. Those sections were accordingly repealed, leaving a gap in the law and much confusion.

The AHRA, which carries maximum penalties of a $500,000 fine or ten years’ imprisonment, has allowed surrogates and donors to have their expenses reimbursed (with the provision of receipts), but they are not supposed to be compensated beyond that. Though the society contends that this restriction has significantly reduced the number of would-be surrogates or donors, in practice, that restriction has been frequently ignored as it is seldom enforced and it is unclear which expenses are covered. Some people have also turned to importing eggs and sperm from the United States (where donors are paid) or travelling to other countries in what is called “reproductive tourism.”

The Canadian Fertility and Andrology Society hopes that by increasing the commercialization of “assisted reproduction” more donors or surrogates will come forward and more infertile or same-sex couples or individuals may be aided in their desire to have a child. According to the society, approximately one in eight Canadian couples struggle with infertility. The society says, “Maintaining the status quo is simply not an option.” They assert, “as a leading liberal democracy, our laws must keep pace with advances in science and society,” and state that founding a family is a basic human right listed in the Universal Declaration of Human Rights.

In response to the Canadian Fertility and Andrology Society’s position statement, Health Canada spokesman Eric Morrissette said the government is indeed still working on clarifying its law on assisted reproduction. In a Sept. 30, 2016 news release Health Canada indicated it will specify which expenses would be eligible for reimbursement and that the new regulations will be enforced.

However, a cheaper and perhaps more efficient option than finding an anonymous donor or unrelated surrogate is to get sperm or egg donations or offers of surrogacy from family members – parents, children, siblings, etc. – who may not ask for anything in return. This option has the perceived added benefit of maintaining the intended parent’s biological connection to the child but the downside of outwardly appearing like incest. The American Society for Reproductive Medicine’s ethics committee thinks that consanguineous combinations of gametes from people with the same ancestor or those that just simulate incest (such as a brother providing sperm to his sister to use with an egg from an unrelated donor) should be prevented. This problem has also led to more calls for the government to clarify the law, as current prohibitions on incestuous sexual relations or marriages do not cover egg or sperm donations from immediate blood relatives.

Surrogacy (in which a woman carries a child for another family, to be transferred into that family’ care after birth) and sperm or egg donation will typically occur alongside in vitro fertilization. In IVF, eggs are fertilized outside of the uterus and the “best” looking resulting embryos are then transferred to the uterus with the hope that at least one of the embryos successfully implants. IVF is viewed as morally problematic by the pro-life community as often the “leftover” embryos are either destroyed or frozen.

Others, such as professors Juliet Guichon and Elizabeth Anderson, worry that surrogacy, which carries a notable psychological toll, is exploitative of the surrogates. Professor Vanessa Gruben asks of familial egg or sperm donations, “Is this actually going to be in the best interests of the child?”

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