Breaking the Law
SELECT MEDIA ARTICLES
Fogarty, C. (16 Feb 2016). A look into the bioethics of commercialized surrogacy. The McGill Tribune, 35(19).
Blackwell, T. (13 Dec 2015). Health Canada all but ignores illegal ad for surrogate, cash for egg donors, internal documents reveal. National Post.
Motluk, A. (23 Nov 2015). Reimbursement discussions exclude surrogates, donors [PDF - 154 KB]. CMAJ News.
Blackwell, T. (23 Sept 2015). Couples paying most Canadian donors for their eggs, breaking controversial fertility law, study finds. National Post.
Motluk, A. (3 Feb 2014). The baby-making business: on the front lines of Toronto's booming, semi-legal surrogacy market. Toronto Life.
Motluk, A. (18 Dec 2013). First prosecution under Assisted Human Reproduction Act ends in conviction. CMAJ News.
Blackwell, T. (15 Dec 2013). Canadian fertility consultant received $31K for unwittingly referring parents to U.S. 'baby-selling' ring National Post.
Anonymous. (27 Sept 2013). Human egg trade operates in regulatory void. CBCNews|Health.
Motluk, A. (20 Sept 2013). Insurer denies coverage for fertility doctor facing lawsuit. CMAJ. (Behind paywall).
Blackwell, T. (1 Apr 2013). Fertility consultant at centre of criminal case accused of forging egg donor profiles given to potential clients. National Post.
Motluk, A. (28 Mar 2013). Egg donor sues Toronto ferility doctor after suffering stroke. National Post.
Blackwell, T. (13 Mar 2013). 'Business has boomed': Canadian surrogacy agent facing 27 charges continues her controversial work. National Post.
Blackwell, T. (13 Feb 2013). Illegal purchase of sperm, eggs and surrogacy services leads to 27 charges against Canadian fertility company and CEO. National Post.
Motluk, A. (21 Jan 2013). Is egg donation dangerous? Maisonneuve.
Déry, P. (12 Sept 2012). Les mères porteuses.
Anonymous. (25 Apr 2012). Pregnant woman who bought U.S. donor eggs speaks out. Payment for eggs and sperm illegal in Canada.CBC News.
Beitiks, E. (19 Apr 2012). Canada's fertility industry now open for (unregulated) business. Biopolitical Times.
W5 Staff. (29 Jan 2011). The murky world of reproductive medicine.TV News.
Motluk, A. (Apr 2010). The human egg trade. The Walrus.
SELECT IMPACT ETHICS BLOGS
Cattapan, A. (24 Apr 2015). For love or money: The 'shortage' of Canadian sperm donors. Impact Ethics.
Baylis, F., & Downie, J. (17 Dec 2013). Wishing doesn't make it so. Impact Ethics.
Gruben, V., & Cameron, A. (22 Aug 2013). Sperm is property: So says the court. Impact Ethics.
Burns, C. (11 Jul 2013). We are egg donors. Impact Ethics.
Baylis, F. (6 Feb 2016). Legal schmegal: What's a little cash between friends? [PDF 1.8 MB]. "Assisted Reproduction: Navigating the Criminalization of Commercial Surrogacy and Reacting to Unexpected Situations", McGill Journal of Law and Health annual colloquium. Montréal, QC.
Snow, D., Baylis, F., & Downie, J. (2015). Why the government of Canada won't regulate assisted human reproduction: A modern mystery. McGill Journal of Law and Health, 9(1), 1-15.
Baylis, F., & Downie, J. (2014). Achieving national altruistic self-sufficiency in human eggs for third-party reproduction in Canada. International Journal of Feminist Approaches to Bioethics 7(2), 164-184.
Baylis, F., Downie, J., & Snow, D. (2014). Fake it till you make it: Policymaking and assisted human reproduction in Canada. Journal of Obstetrics and Gynaecology Canada, 36(6), 510-512.
Cattapan, A. (2014). Risky business: Surrogacy, egg donation, and the politics of exploitation [PDF 265 KB]. Canadian Journal of Law and Society, 29(3), 361-379.
Downie, J., & Baylis, F. (2013). The tale of Assisted Human Reproduction Canada: A tragedy in five acts. Canadian Journal of Women and the Law, 25(2), 183-201.
Downie, J., & Baylis, F. (2013). Transnational trade in human eggs: Law, policy and (in)action in Canada. [PDF - 313 KB]. The Journal of Law, Medicine & Ethics, 41(1), 224-239.
Baylis, F. (26 Apr 2013). Legal schmegal: Who cares what the AHR law says? [PDF - 1.8 MB]. ARTs and Canadian Public Policy Today: A Feminist Conversation, Toronto, Canada.
SELECT POLICY CONTRIBUTIONS
McLeod, M. (9 Sept 2017). Submission - Towards a Strengthened Assisted Human Reproduction Act: a consultation with Canadians on key policy proposals (Health Canada) [PDF - 403 KB].
Baylis, F., & Cattapan, A. (1 Sept 2017). Submission on Toward a strengthened Assisted Human Reproduction Act: a consultation with Canadians on key policy proposals (Health Canada) [PDF - 1713 KB].
Baylis, F. (15 Sept 2015). Submission on Draft amendment to CSA Z900.2.1-12, Tissues for assisted reproduction [PDF - 247 KB].
Cattapan, A. (15 Sept 2015). Submission on Draft amendment to CSA Z900.2.1-12, Tissues for assisted reproduction [PDF - 355 KB].
In July 2017, more than 13 years after the Assisted Human Reproduction Act came into force, the federal government has published a consultation document titled Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals [PDF - 527 KB] as part of its initiative to finally develop regulations to support the Act. The consultation document includes proposed policy directions for Section 10 (on the safety of donor sperm and ova), Section 12 (on reimbursement of receipted expenditures) and Sections 45-58 (on administration and enforcement) of the Assisted Human Reproduction Act. Several members of NTE Impact Ethics participated in the public consultation – Françoise Baylis (with Alana Cattapan) and Mark McLeod. Read submissions by Baylis and Cattapan here [PDF - 1713 KB] and by McLeod here [PDF - 403 KB]. Other colleagues (interested in public health, women's health and ethics) responded, including Maria DeKoninck. Read her response in French here [PDF - 40 KB] and the English translation here [PDF - 39 KB].
It is illegal under the Assisted Human Reproduction Act to "pay consideration to a female person to be a surrogate mother," "to accept consideration for arranging the services of a surrogate mother" and "to pay consideration to another person to arrange for the services of a surrogate mother" (AHR Act s.6). It is anticipated that reimbursement for receipted expenditures incurred by a surrogate mother and for loss of work-related income will be legal, provided that the reimbursements are made in accordance with the regulations (AHR Act s.12). As yet, however, there are no regulations with respect to reimbursement; moreover, section 12 of the legislation is not yet in force.
It is also illegal in Canada to pay for sperm or eggs from a "donor or a person acting on behalf of a donor" (AHR Act s.7). It is similarly anticipated that reimbursement for receipted expenditures incurred by a donor will be legal, provided that "the reimbursement is made in accordance with the regulations" (AHR Act s.12). As yet, however, there are no regulations with respect to reimbursement; moreover, section 12 of the legislation is not yet in force.
On December 13, 2013, the first prosecution under the AHR Act resulted in the conviction of Leia Picard, a Canadian fertility agency owner, for purchasing eggs, paying surrogates and taking money to arrange surrogacies (R v. Picard and Canadian Fertility Consulting Ltd). Curiously, the Agreed Statement of Facts [PDF - 3.2 MB] references "Health Canada policy" regarding the permissible reimbursement of expenditures to donors and surrogates, even though there are no regulations and section 12 of the AHR Act is not in force. On December 16, 2013, Jocelyn Downie and Françoise Baylis sent a letter asking Health Canada [PDF - 104 KB] about this so-called "policy". Health Canada’s response [PDF - 76 KB] referenced two pages on its website that offer vague examples of permissible expenditures.
This response confirms a failure to follow established legal mechanisms for creating regulations. Of note, prior to the correspondence about the case involving Leia Picard, Jocelyn Downie and Françoise Baylis had written to the Director of Assisted Human Reproduction [PDF - 291 KB] in July 2013 and again in October 2013 [PDF - 315 KB] requesting clarification on Health Canada's position on the reported trade in reproductive materials and the transnational trade in human eggs, specifically asking why the law is not being enforced. Health Canada responded to the July 2013 letter in September 2013 [PDF - 80 KB] and to the October 2013 letter in December 2013 [PDF - 76 KB].
According to Health Canada, the AHR Act
…does not prohibit the purchase of sperm or eggs in Canada from persons (individual or corporate) other than donors, provided the person is not acting on behalf of the donor. Health Canada interprets "acting on behalf of the donor" to mean acting as an agent or representative for the donor. It is therefore the Department’s interpretation that it is not illegal to purchase ova from an egg bank, provided that the egg bank is not acting on behalf of the donor. (emphasis added)
It is Health Canada’s interpretation that donors may currently be reimbursed for their actual expenditures directly related to their donation. Reimbursement must not involve financial or other gain, normally occurs after receipts are provided, and may not be paid in advance of anticipated expenses. (emphasis added)
The many responses from Health Canada are disappointing insofar as Downie and Baylis have been asking about regulations, and Health Canada has been offering interpretations.
This case emphasizes the importance of the following questions, which await an answer from Health Canada.
- On what basis does Health Canada allow any reimbursement of "expenditures directly related to their donation"? Section12 is not yet in force, therefore only section 7 applies and therefore no payments are possible (section 12 creates an exception to section 7).
- If Health Canada is acting as if section 12 is in force, then Health Canada must nevertheless conclude that no reimbursement is possible as no regulations are in force. The Act states that "No person shall, except in accordance with the regulations, (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum." To repeat, there are no regulations for section 12, therefore it is not possible to reimburse a donor "in accordance with the regulations". On what basis does Health Canada conclude that “donors may currently be reimbursed for their actual expenditures directly related to their donation”?
- On what basis does Health Canada conclude that "reimbursement …, normally occurs after receipts are required, and may not be paid in advance of anticipated expenses"? (emphasis added) Again, section 12 is not yet in force. Further, if acting as if section 12 is in force, then Health Canada would have to conclude that a receipt is absolutely required and not accept the lesser standard of "normally occurs".
In 2015, the Canadian Standards Association (a private, not-for-profit company) was invited to develop standards for potential reimbursements to gamete donors, embryo donors and surrogates. These standards would be an annex to an existing standard CAN/CSA Z900.2.1, Tissues for Assisted Reproduction. This process included a public consultation that took place over three months (ending September 15, 2015). Twenty-seven people [PDF - 154 KB] participated in the public consultation, including members of NTE Impact Ethics – Françoise Baylis and Alana Cattapan.
Then, in October 2016, the federal government announced plans to introduce regulations to support the Act [PDF - 186 KB]. A Notice of Intent [PDF - 214 KB]. was published and Canadians were invited to provide comments. Several members of NTE Impact Ethics participated in the public consultation – Mark McLeod, Alana Cattapan, and Françoise Baylis and Jocelyn Downie. You can read their submissions, here [PDF - 325 KB], here [PDF - 361 KB], and here [PDF - 208 KB].
Updated as of August 2017.