Impact Ethics

Surrogates, Egg and Sperm Donors

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Canadian law on Assisted Human Reproduction prohibits payments for reproductive services and materials, but permits reimbursements for receipted expenditures, in accordance with the 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.

This initiative has introduced much confusion and many inaccurate statements about the facts relevant to payments and reimbursements.  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].  

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.

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 $60,000. 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.

Leia Picard (now Leia Swanberg) is among the fertility brokers advising Mr. Housefather.  “Swanberg says that, since she was charged, her business has quadrupled.”  

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 sperm or eggs 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 sperm and egg donors as well as surrogates.

Fourteen years after the Act came into force, Health Canada is finally drafting the regulations on expenditures. A 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 will file a private member's bill in the spring of 2018 to de-criminalize payments for human sperm, eggs, and surrogacy.

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). 

Page last updated Spring 2018.