Impact Ethics

Surrogates, Egg and Sperm Donors


The 2004 Assisted Human Reproduction Act (AHR Act) prohibits payment for surrogacy, payment to intermediaries to arrange for the services of a surrogate, and the purchase of human reproductive material. Under the AHR Act, though payments are prohibited, reimbursements for receipted expenditures are permitted in accordance with ‘the regulations’. The regulations on expenditures have not yet been written, however. This has left potential parents, surrogates, donors, clinicians, and coordinators in a land of uncertainty. Finally, in 2017, Health Canada began the process for drafting these regulations.

In March 2018, Mr. Anthony Housefather, Liberal Member of Parliament, announced that he would introduce a private member’s bill to remove the criminal prohibition on payments for surrogacy, eggs, and sperm. The bill was introduced May 29, 2018. Mr Housefather advocates for payment (beyond reimbursement) of surrogates and egg and sperm providers. Opponents of this bill argue that commodification of the human body is inadvisable.

Throughout the debate much confusion and many inaccurate statements about the facts relevant to payments and reimbursements have been introduced.  In an effort to dispel false information and to help Canadians who may want to participate in the debate, a group of experts with varied backgrounds and interests have published a FACT SHEET on Proposed Changes to the Assisted Human Reproduction Act [PDF - 386 KB].  More information about the context for these debates can also be found below. 

Page last updated September 2018.

In 1993, the Royal Commission on New Reproductive Technologies strongly condemned the commercialization of human reproductive material. It stated that “No profit should be made from the selling of any reproductive material … because of its ultimately dehumanizing effects,” and recommended a criminal ban on payments (or advertising payments) for human sperm, eggs, and embryos, as well as payment for contract pregnancy (surrogacy).

In the Canadian parliamentary debates leading up to the 2004 Assisted Human Reproduction Act (AHR Act), there was all-party agreement against the commercialization of human reproduction. This is reflected in criminal prohibitions in the AHR Act which make it illegal to pay “consideration” to a “surrogate mother,” or to an “intermediary” in a surrogacy arrangement, and to purchase eggs or sperm from a “donor” (sections 6 and 7 of the AHR Act). The legislation also includes provisions in section 12 to allow – in accordance with regulations – reimbursements for receipted “expenditures” to cover out-of-pocket costs to egg and sperm donors as well as surrogates. These regulations on expenditures, which would detail how and in what ways reimbursement occurs, have not yet been written, leaving many involved in assisted reproduction in a complex legal situation.

On December 13, 2013 Leia Picard, a Canadian fertility agency owner, became the first person to be prosecuted under the AHR Act. Picard admitted to paying surrogates, taking money to arrange surrogacies, and purchasing eggs (R v. Picard and Canadian Fertility Consulting Ltd); for this, the court imposed a fine of $60,000The fine did not quell the demand for Picard’s services. Leia Picard (now Leia Swanberg) “says that, since she was charged, her business had quadrupled.” According to the Agreed Statement of Facts [PDF - 3.2 MB] in the case involving Ms. Picard, while there were no regulations in place at the time, there was a “Health Canada policy” regarding permissible reimbursement of expenditures to surrogates and donors. When Jocelyn Downie and Françoise Baylis sent a letter [PDF - 104 KB] asking about this so-called “policy,” Health Canada’s response referenced two pages [PDF - 76 KB] on its website.

Fourteen years after the Act came into force, Health Canada has finally begun drafting the regulations on expenditures. Once complete and passed, these regulations should offer clear guidance for potential donors, surrogates, parents, doctors, and agencies managing assisted reproduction.The recent initiative by Mr. Housefather (a Liberal member of the Canadian Parliament) threatens to undermine this effort. On March 27, 2018 at a press conference in Montréal, Mr. Housefather announced that he would file a private member's bill in the spring of 2018 to de-criminalize payments for surrogacy, eggs, and sperm.

A few days later, in an interview on CBC Information Morning (Nova Scotia), Françoise Baylis warned that Mr. Housefather’s plan strikes at the social fabric of Canada. She noted that removing the prohibition on payments contravenes Canadian values that would keep human body parts out of the commercial marketplace with attendant risks of exploitation and coercion. Alana Cattapan, also interviewed by CBC, pointed out that we don't have research to show whether the ban on payment for surrogacy is or is not exploitative. [Read more on whether there is a link between payment and exploitation]. Cattapan noted that if the perceived problem is that not enough women volunteer to be surrogates, there are other ways to address this problem. She cited the examples of blood and organ donation practices in Canada that incentivize donors without involving monetary payment. Cattapan further stated that most surrogates want better patient care and clear regulations on what is eligible for reimbursement. "Receiving money on top of that is secondary. All of the other parts are more important," she said.

Both Cattapan and Baylis support Health Canada's recent efforts to strengthen the 2004 Assisted Human Reproduction Act by introducing relevant regulations and have stated that Housefather's bill could potentially undermine Health Canada's work in this regard.

As Cattapan has noted, we legislate in this area as a means to help prevent worst case scenarios of commercialization of the human body. Keeping payments for human sperm, eggs, as well as pregnancy contracts a criminal activity is a way of continuing to provide the federal government with a "foothold" for having regulations to control these practices.

Listen to Cattapan's interview "Is legalizing fees for surrogate moms and sperm and egg donors the right way to go?" on the Simi Sara show (Global) and Baylis' interview "Dal bioethicist has warnings about proposed change to federal laws around paying for eggs, sperm…" on Information Morning Nova Scotia (CBC). Also available is a taped debate between Françoise Baylis and Anthony Housefather (Canadian Member of Parliament) on the topic of payment for surrogate mothers (Maritime Noon show, CBC Radio, 26 Apr 2018).

Around the world other countries have determined their own ways to manage the payment and/or reimbursement of surrogates and egg and sperm donors. As discussions about Canada’s own policy develop, the strategies employed by other countries (largely the US) are often mentioned. Each country is unique, and it is not possible to simply transplant the system from one nation into another; however, it is still useful to consider how and why other countries have established their regulations.

The American Society for Reproductive Medicine (ASRM), which provides non-enforceable guidelines for the US fertility industry, has suggested that payment should not be so great as to make donors discount the risks involved. The US is often seen as a commercial haven for third party reproduction, but many states across the US simply do not regulate payment. These websites provide more detailed information about the existence, or lack thereof, of surrogacy and egg donation laws in the United States.

Meanwhile, both the European Society of Human Reproduction and Embryology (ESHRE) and the European Parliament emphasize that donation should be based on the principles of voluntary and unpaid donation [PDF - 242 KB].

‘In principle there should be no payment for the donation of biological material. The intrinsic value of a gift, a way of showing solidarity, is higher than the positive utilitarian consequences of paying and obtaining more material’ – ESHRE Taskforce on Ethics and Law, 2006

The European Parliament’s Directive does allow individual member states to regulate compensation of donation, and member states vary in how they do so, as outlined below.

There are several ways that governing bodies around the world regulate reimbursement and payment of gamete donors and surrogates. Although presented discretely here, the frameworks are not always distinct.

1)      No Regulation: Many legislative bodies have not addressed payment in relation to surrogacy and gamete donation. Alaska and Georgia are two states in the US that do not have legislation on payment for surrogacy or egg donation. In such places, the practices may proliferate, and payment well above reimbursement of expenses may occur, but that does not mean that such practices are condoned.

2)      Complete Prohibition: In some countries certain types of assisted reproduction are completely prohibited. Reasons for prohibition vary by country. In Germany the ban on egg donation has been linked to an unwillingness to divide motherhood into genetic and social components. Other countries that ban certain assisted reproductive practices include Turkey, which bans egg donation, and Finland, which has banned surrogacy since 2007.

3)      Permitted Without Reimbursement: In some situations, although surrogacy or gamete donation is legal, any form of reimbursement or payment is illegal. In the State of Washington, for example, prior to January 1st 2019, only "non-compensatory, compassionate gestational surrogacy is permitted". As of January 1st 2019, commercial surrogacy will be permitted in Washington.

4)      Permitted With Reimbursement: Some legislative bodies allow altruistic donation and surrogacy, and though they prohibit ‘payment’ they allow compensation for the expenses or loss of income that donors and surrogates may have experienced due to their treatment. India is one such country, with the 2016 Surrogacy (Regulation) Bill [PDF - 111 KB] prohibiting payment beyond "reasonable expenses". Countries vary on how such reimbursement is legislated. In France, sperm donors must provide receipts for their expenses in order to receive compensation. In the United Kingdom, sperm donors receive 35£ (60CAD) to cover the expenses associated with each visit for donation. The intention in these cases is that the donation process has no impact on the donors’ finances.

5)      Permitted With Payment: In some situations, legislation on third party reproduction includes provisions for payment. In California, for example, the legal framework provides for the “validity and enforcement of commercial surrogacy”. As of January 1st 2019, Washingtonwill decriminalize payment in surrogacy arrangements, and become another location where third party reproduction can include payment of the third party.

Once the regulations on expenditure mentioned in the 2004 AHR Act are put in place, Canada will follow the fourth option: third party reproduction permitted with reimbursement. The extent and method of reimbursement have not yet been determined.

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Overview


The 2004 Assisted Human Reproduction Act (AHR Act) prohibits payment for surrogacy, payment to intermediaries to arrange for the services of a surrogate, and the purchase of human reproductive material. Under the AHR Act, though payments are prohibited, reimbursements for receipted expenditures are permitted in accordance with ‘the regulations’. The regulations on expenditures have not yet been written, however. This has left potential parents, surrogates, donors, clinicians, and coordinators in a land of uncertainty. Finally, in 2017, Health Canada began the process for drafting these regulations.

In March 2018, Mr. Anthony Housefather, Liberal Member of Parliament, announced that he would introduce a private member’s bill to remove the criminal prohibition on payments for surrogacy, eggs, and sperm. The bill was introduced May 29, 2018. Mr Housefather advocates for payment (beyond reimbursement) of surrogates and egg and sperm providers. Opponents of this bill argue that commodification of the human body is inadvisable.

Throughout the debate much confusion and many inaccurate statements about the facts relevant to payments and reimbursements have been introduced.  In an effort to dispel false information and to help Canadians who may want to participate in the debate, a group of experts with varied backgrounds and interests have published a FACT SHEET on Proposed Changes to the Assisted Human Reproduction Act [PDF - 386 KB].  More information about the context for these debates can also be found below. 

Page last updated September 2018.

Payment Debate

In 1993, the Royal Commission on New Reproductive Technologies strongly condemned the commercialization of human reproductive material. It stated that “No profit should be made from the selling of any reproductive material … because of its ultimately dehumanizing effects,” and recommended a criminal ban on payments (or advertising payments) for human sperm, eggs, and embryos, as well as payment for contract pregnancy (surrogacy).

In the Canadian parliamentary debates leading up to the 2004 Assisted Human Reproduction Act (AHR Act), there was all-party agreement against the commercialization of human reproduction. This is reflected in criminal prohibitions in the AHR Act which make it illegal to pay “consideration” to a “surrogate mother,” or to an “intermediary” in a surrogacy arrangement, and to purchase eggs or sperm from a “donor” (sections 6 and 7 of the AHR Act). The legislation also includes provisions in section 12 to allow – in accordance with regulations – reimbursements for receipted “expenditures” to cover out-of-pocket costs to egg and sperm donors as well as surrogates. These regulations on expenditures, which would detail how and in what ways reimbursement occurs, have not yet been written, leaving many involved in assisted reproduction in a complex legal situation.

On December 13, 2013 Leia Picard, a Canadian fertility agency owner, became the first person to be prosecuted under the AHR Act. Picard admitted to paying surrogates, taking money to arrange surrogacies, and purchasing eggs (R v. Picard and Canadian Fertility Consulting Ltd); for this, the court imposed a fine of $60,000The fine did not quell the demand for Picard’s services. Leia Picard (now Leia Swanberg) “says that, since she was charged, her business had quadrupled.” According to the Agreed Statement of Facts [PDF - 3.2 MB] in the case involving Ms. Picard, while there were no regulations in place at the time, there was a “Health Canada policy” regarding permissible reimbursement of expenditures to surrogates and donors. When Jocelyn Downie and Françoise Baylis sent a letter [PDF - 104 KB] asking about this so-called “policy,” Health Canada’s response referenced two pages [PDF - 76 KB] on its website.

Fourteen years after the Act came into force, Health Canada has finally begun drafting the regulations on expenditures. Once complete and passed, these regulations should offer clear guidance for potential donors, surrogates, parents, doctors, and agencies managing assisted reproduction.The recent initiative by Mr. Housefather (a Liberal member of the Canadian Parliament) threatens to undermine this effort. On March 27, 2018 at a press conference in Montréal, Mr. Housefather announced that he would file a private member's bill in the spring of 2018 to de-criminalize payments for surrogacy, eggs, and sperm.

A few days later, in an interview on CBC Information Morning (Nova Scotia), Françoise Baylis warned that Mr. Housefather’s plan strikes at the social fabric of Canada. She noted that removing the prohibition on payments contravenes Canadian values that would keep human body parts out of the commercial marketplace with attendant risks of exploitation and coercion. Alana Cattapan, also interviewed by CBC, pointed out that we don't have research to show whether the ban on payment for surrogacy is or is not exploitative. [Read more on whether there is a link between payment and exploitation]. Cattapan noted that if the perceived problem is that not enough women volunteer to be surrogates, there are other ways to address this problem. She cited the examples of blood and organ donation practices in Canada that incentivize donors without involving monetary payment. Cattapan further stated that most surrogates want better patient care and clear regulations on what is eligible for reimbursement. "Receiving money on top of that is secondary. All of the other parts are more important," she said.

Both Cattapan and Baylis support Health Canada's recent efforts to strengthen the 2004 Assisted Human Reproduction Act by introducing relevant regulations and have stated that Housefather's bill could potentially undermine Health Canada's work in this regard.

As Cattapan has noted, we legislate in this area as a means to help prevent worst case scenarios of commercialization of the human body. Keeping payments for human sperm, eggs, as well as pregnancy contracts a criminal activity is a way of continuing to provide the federal government with a "foothold" for having regulations to control these practices.

Listen to Cattapan's interview "Is legalizing fees for surrogate moms and sperm and egg donors the right way to go?" on the Simi Sara show (Global) and Baylis' interview "Dal bioethicist has warnings about proposed change to federal laws around paying for eggs, sperm…" on Information Morning Nova Scotia (CBC). Also available is a taped debate between Françoise Baylis and Anthony Housefather (Canadian Member of Parliament) on the topic of payment for surrogate mothers (Maritime Noon show, CBC Radio, 26 Apr 2018).

Global Picture

Around the world other countries have determined their own ways to manage the payment and/or reimbursement of surrogates and egg and sperm donors. As discussions about Canada’s own policy develop, the strategies employed by other countries (largely the US) are often mentioned. Each country is unique, and it is not possible to simply transplant the system from one nation into another; however, it is still useful to consider how and why other countries have established their regulations.

The American Society for Reproductive Medicine (ASRM), which provides non-enforceable guidelines for the US fertility industry, has suggested that payment should not be so great as to make donors discount the risks involved. The US is often seen as a commercial haven for third party reproduction, but many states across the US simply do not regulate payment. These websites provide more detailed information about the existence, or lack thereof, of surrogacy and egg donation laws in the United States.

Meanwhile, both the European Society of Human Reproduction and Embryology (ESHRE) and the European Parliament emphasize that donation should be based on the principles of voluntary and unpaid donation [PDF - 242 KB].

‘In principle there should be no payment for the donation of biological material. The intrinsic value of a gift, a way of showing solidarity, is higher than the positive utilitarian consequences of paying and obtaining more material’ – ESHRE Taskforce on Ethics and Law, 2006

The European Parliament’s Directive does allow individual member states to regulate compensation of donation, and member states vary in how they do so, as outlined below.

Regulatory Frameworks

There are several ways that governing bodies around the world regulate reimbursement and payment of gamete donors and surrogates. Although presented discretely here, the frameworks are not always distinct.

1)      No Regulation: Many legislative bodies have not addressed payment in relation to surrogacy and gamete donation. Alaska and Georgia are two states in the US that do not have legislation on payment for surrogacy or egg donation. In such places, the practices may proliferate, and payment well above reimbursement of expenses may occur, but that does not mean that such practices are condoned.

2)      Complete Prohibition: In some countries certain types of assisted reproduction are completely prohibited. Reasons for prohibition vary by country. In Germany the ban on egg donation has been linked to an unwillingness to divide motherhood into genetic and social components. Other countries that ban certain assisted reproductive practices include Turkey, which bans egg donation, and Finland, which has banned surrogacy since 2007.

3)      Permitted Without Reimbursement: In some situations, although surrogacy or gamete donation is legal, any form of reimbursement or payment is illegal. In the State of Washington, for example, prior to January 1st 2019, only "non-compensatory, compassionate gestational surrogacy is permitted". As of January 1st 2019, commercial surrogacy will be permitted in Washington.

4)      Permitted With Reimbursement: Some legislative bodies allow altruistic donation and surrogacy, and though they prohibit ‘payment’ they allow compensation for the expenses or loss of income that donors and surrogates may have experienced due to their treatment. India is one such country, with the 2016 Surrogacy (Regulation) Bill [PDF - 111 KB] prohibiting payment beyond "reasonable expenses". Countries vary on how such reimbursement is legislated. In France, sperm donors must provide receipts for their expenses in order to receive compensation. In the United Kingdom, sperm donors receive 35£ (60CAD) to cover the expenses associated with each visit for donation. The intention in these cases is that the donation process has no impact on the donors’ finances.

5)      Permitted With Payment: In some situations, legislation on third party reproduction includes provisions for payment. In California, for example, the legal framework provides for the “validity and enforcement of commercial surrogacy”. As of January 1st 2019, Washingtonwill decriminalize payment in surrogacy arrangements, and become another location where third party reproduction can include payment of the third party.

Once the regulations on expenditure mentioned in the 2004 AHR Act are put in place, Canada will follow the fourth option: third party reproduction permitted with reimbursement. The extent and method of reimbursement have not yet been determined.

Further Reading

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