Surrogates, Egg and Sperm Donors
- Overview
- Historical Timeline
- Payment Debate
- Global Picture
- Regulatory Frameworks
- Media Articles
- Further Reading
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 (eggs and sperm). Under the AHR Act, though payments are prohibited, reimbursements for receipted expenditures are permitted in accordance with “the regulations”. Until now, however, the lack of regulations has left potential parents, surrogates, and donors, as well as clinicians and coordinators in a land of uncertainty.
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. This bill was introduced May 29, 2018. Mr. Housefather advocates for payment (beyond reimbursement) of surrogates and egg and sperm donors. Opponents of the bill argue against the commodification of the human body.
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.
On October 26, 2018, Health Canada released proposed new regulations to strengthen the AHR Act. The proposed regulations aim to address a number of concerns including uncertainty regarding what expenditures may be reimbursed for surrogates and donors. In this way, the federal government aims to defend and promote the current altruistic system. The proposed regulatory text is open for comment until January 10, 2019.
Page last updated November 2018.
|
1989 |
Brian Mulroney founded the Royal Commission on New Reproductive Technologies (NRTs). |
Royal Commission on NRTs condemned the commercialization of human reproductive material. |
1993 |
|
|
March 2004 |
Canadian Assisted Human Reproduction (AHR) Act received royal assent. |
Assisted Human Reproduction Canada (AHRC) was established to administer the AHR Act. |
Dec 2006 |
|
|
2010 |
The Supreme Court of Canada passed a ruling that reduced the federal role in assisted human reproduction. |
Assisted Human Reproduction Canada was closed. Responsibilities were transferred to Health Canada. |
March 2012 |
|
|
Dec 2013 |
Leia Picard became the first person to be prosecuted under the AHR Act. |
A public consultation on the reimbursement of surrogates, egg and sperm donors was conducted. |
July to Sept 2015 |
|
|
Oct 2016 |
The federal government announced plans to introduce regulations to support the AHR Act. |
The federal government published a consultation document as part of an initiative to develop regulations to support the AHR Act. |
July 2017 |
|
|
March 2018 |
Mr. Housefather introduced a private member’s bill to permit the commercialization of assisted human reproduction. |
Health Canada released proposed new regulations to strengthen the AHR Act. |
Oct 2018 |
|
When considering the regulation of payment for gamete providers and surrogates in Canada there are two largely overlapping fields of discussion: firstly, should payment (as distinct from reimbursement) be permitted; and secondly, if only reimbursement is to be permitted, as suggested by the 2004 Assisted Human Reproduction Act (AHR Act), how should this reimbursement be regulated?
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 to 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].
‘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 in which governing bodies around the world regulate reimbursement and payment of surrogates and gamete donors. 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 which 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 which 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 1, 2019, only "non-compensatory, compassionate gestational surrogacy is permitted". As of January 1, 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 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 1, 2019, Washington will decriminalize payment in surrogacy arrangements, and become another location where third party reproduction can include payment.
Mr. Housefather’s bill aimed to bring Canada under the fifth framework, where third party reproduction is permitted with payment. Mr. Housefather has recently admitted that his bill will not move through the parliamentary process under the current federal government. As such, for now, Canada will continue to follow the fourth option: third party reproduction permitted with reimbursement.
- Barankevych, A. (30 May 2018). Bill C-404: How will it change surrogacy in Canada? Nelligan O'Brien Payne LLP [blog].
- Weeks, C. (29 May 2018). Liberal MP's private-members bill would lift restrictions on third-party reproduction. The Globe and Mail.
- Buzzetti, H. (29 Mar 2018). Mères porteuses: sus à la rémunération! Le Devoir.
- Lee, Shuyee. (28 Mar 2018). Liberal MP Anthony Housefather wants to make it legal for surrogate moms, sperm donors to get paid. CJAD 800 FM.
- Harris, K. (27 Mar 2018). Liberal MPs, advocates want to legalize fees for surrogate moms and sperm donors. CBC.
- Blackwell, T. (13 Mar 2013). 'Business has boomed': Canadian surrogacy agent facing 27 charges continues her controversial work. National Post.
- Blackwell, T. (15 Feb 2013). Illegal purchase of sperm, eggs and surrogacy services leads to 27 charges against Canadian fertility company and CEO.
- Motluk, A. (Apr 2010). The Human Egg Trade. The Walrus.
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 (eggs and sperm). Under the AHR Act, though payments are prohibited, reimbursements for receipted expenditures are permitted in accordance with “the regulations”. Until now, however, the lack of regulations has left potential parents, surrogates, and donors, as well as clinicians and coordinators in a land of uncertainty.
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. This bill was introduced May 29, 2018. Mr. Housefather advocates for payment (beyond reimbursement) of surrogates and egg and sperm donors. Opponents of the bill argue against the commodification of the human body.
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.
On October 26, 2018, Health Canada released proposed new regulations to strengthen the AHR Act. The proposed regulations aim to address a number of concerns including uncertainty regarding what expenditures may be reimbursed for surrogates and donors. In this way, the federal government aims to defend and promote the current altruistic system. The proposed regulatory text is open for comment until January 10, 2019.
Page last updated November 2018.
Historical Timeline
|
1989 |
Brian Mulroney founded the Royal Commission on New Reproductive Technologies (NRTs). |
Royal Commission on NRTs condemned the commercialization of human reproductive material. |
1993 |
|
|
March 2004 |
Canadian Assisted Human Reproduction (AHR) Act received royal assent. |
Assisted Human Reproduction Canada (AHRC) was established to administer the AHR Act. |
Dec 2006 |
|
|
2010 |
The Supreme Court of Canada passed a ruling that reduced the federal role in assisted human reproduction. |
Assisted Human Reproduction Canada was closed. Responsibilities were transferred to Health Canada. |
March 2012 |
|
|
Dec 2013 |
Leia Picard became the first person to be prosecuted under the AHR Act. |
A public consultation on the reimbursement of surrogates, egg and sperm donors was conducted. |
July to Sept 2015 |
|
|
Oct 2016 |
The federal government announced plans to introduce regulations to support the AHR Act. |
The federal government published a consultation document as part of an initiative to develop regulations to support the AHR Act. |
July 2017 |
|
|
March 2018 |
Mr. Housefather introduced a private member’s bill to permit the commercialization of assisted human reproduction. |
Health Canada released proposed new regulations to strengthen the AHR Act. |
Oct 2018 |
|
Payment Debate
When considering the regulation of payment for gamete providers and surrogates in Canada there are two largely overlapping fields of discussion: firstly, should payment (as distinct from reimbursement) be permitted; and secondly, if only reimbursement is to be permitted, as suggested by the 2004 Assisted Human Reproduction Act (AHR Act), how should this reimbursement be regulated?
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 to 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].
‘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 in which governing bodies around the world regulate reimbursement and payment of surrogates and gamete donors. 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 which 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 which 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 1, 2019, only "non-compensatory, compassionate gestational surrogacy is permitted". As of January 1, 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 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 1, 2019, Washington will decriminalize payment in surrogacy arrangements, and become another location where third party reproduction can include payment.
Mr. Housefather’s bill aimed to bring Canada under the fifth framework, where third party reproduction is permitted with payment. Mr. Housefather has recently admitted that his bill will not move through the parliamentary process under the current federal government. As such, for now, Canada will continue to follow the fourth option: third party reproduction permitted with reimbursement.
Media Articles
- Barankevych, A. (30 May 2018). Bill C-404: How will it change surrogacy in Canada? Nelligan O'Brien Payne LLP [blog].
- Weeks, C. (29 May 2018). Liberal MP's private-members bill would lift restrictions on third-party reproduction. The Globe and Mail.
- Buzzetti, H. (29 Mar 2018). Mères porteuses: sus à la rémunération! Le Devoir.
- Lee, Shuyee. (28 Mar 2018). Liberal MP Anthony Housefather wants to make it legal for surrogate moms, sperm donors to get paid. CJAD 800 FM.
- Harris, K. (27 Mar 2018). Liberal MPs, advocates want to legalize fees for surrogate moms and sperm donors. CBC.
- Blackwell, T. (13 Mar 2013). 'Business has boomed': Canadian surrogacy agent facing 27 charges continues her controversial work. National Post.
- Blackwell, T. (15 Feb 2013). Illegal purchase of sperm, eggs and surrogacy services leads to 27 charges against Canadian fertility company and CEO.
- Motluk, A. (Apr 2010). The Human Egg Trade. The Walrus.