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?
1993 - 2014
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 eggs, sperm, and embryos, as well as payment for contract pregnancy (surrogacy).
In the Canadian parliamentary debates leading up to the 2004 AHR Act, there was an all-party agreement against the commercialization of human reproduction. This is reflected in criminal prohibitions in the 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. This section would also provide the opportunity for surrogates to receive reimbursement for loss of work-related income in certain circumstances. For fourteen years following the introduction of the Act, no regulations on expenditures had been written, and section 12 of the legislation was not in force. The absence of regulations detailing how and in what ways reimbursements could occur, left many involved in assisted reproduction in a complex legal situation.
In response to the lack of clarity, Jocelyn Downie and Françoise Baylis wrote 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 was 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)
Additionally,
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.
Amidst the lack of clarity, 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. The 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 Downie and 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 that offer vague examples of permissible expenditures.
Picard’s case emphasized 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".
2015 - present
Since 2015, the Canadian government has been moving towards introducing regulations that would detail and formalize the process of reimbursement for gamete donors and surrogates in keeping with the 2004 Assisted Human Reproduction Act (AHR Act). Although questions posed in 2013 have not been completely answered, this movement marks a shift in the direction of clarity.
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.
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.
Moving ever-closer to introducing regulations, in July 2017 the federal government 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 included 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 Ethicsparticipated 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].
More than fourteen years after the Act came into force, on October 26, 2018 Health Canada released proposed new regulations to strengthen the AHR Act. Once complete and passed, these regulations should offer clear guidance for potential donors, surrogates, parents, doctors, and agencies managing assisted reproduction. The proposed regulations detail what expenditures may be reimbursed and by what methods.
While debates surrounding the reimbursement have been taking place, the question of commercializing surrogacy, egg and sperm donation has returned. At a press conference in Montréal on March 27,, 2018, Mr. Housefather (a Liberal Member of the Canadian Parliament) introduced a private member's bill suggesting the commercialization of assisted human reproduction.
Both Cattapan and Baylis support Health Canada's recent efforts to strengthen the 2004 AHR Act by introducing relevant regulations and have stated that Housefather's bill could potentially undermine Health Canada's work in this regard. 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 would contravene 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.
As Cattapan has noted, we legislate in this area as a means to help prevent worst case scenarios of commercialization of the human body. Continuing to treat payments for human eggs, sperm, and pregnancy contracts as 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 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.
Select Impact Ethics Blogs
- Baylis, F. (29 Oct 2018). Reimbursing surrogates & donors. Impact Ethics.
- Baylis, F., & Cattapan, A. (2 Apr 2018). Paying surrogates, sperm and egg donors goes against Canadian values. The Conversation. Re-published 6 Apr 2018. Impact Ethics.
- Baylis, F. (2 Apr 2018). Let's ask a different question about surrogacy. Impact Ethics.
- Coeytux, F., Darnovsky, M., Berke Fogel, S. & Galpern, E. (21 Dec 2017). New ART regulations require feminist voices. Impact Ethics.
- Cattapan, A., & Baylis, F. (27 Sept 2017). Egg donors and surrogates need high-quality care. The Conversation.
- Cattapan, A., Cameron, A. & Gruben, V. (24 July 2017). When women are surrogate mothers: Is that work? The Conversation.
- Su, Yegang. (15 Mar 2017). Public opinion on legalizing surrogacy in China. Impact Ethics.
- Cattapan, A. (18 Nov 2016). Clarifying the AHR Act after 12 long years. Impact Ethics.
- White, P. (28 Sept 2016). Hidden from view: Canadian surrogacy. Impact Ethics.
- Lippman, A. (3 Oct 2016). Words matter: "Hired Womb" vs. "Birth Mother". Impact Ethics.
- Gruben, V. (6 Jul 2016). CFAS Guidelines on third party reproduction. Impact Ethics.
- White, P. (14 Apr 2016). Canada is a booming foreign surrogacy destination. Impact Ethics.
- Gerber, P. (17 Feb 2016). Making commercial surrogacy illegal only makes aspiring parents go elsewhere. The Conversation.
- Snow, D. (13 May 2015). Manufacturing consensus on commercial surrogacy. Impact Ethics.
- Busby, K. (3 Feb 2015). Is it time to legalize commercial surrogacy in Canada? Impact Ethics.
- Deveaux, M. (26 Nov 2014). Is cross-border egg donation exploitative? Impact Ethics.
- L’Espérance, A. (22 Jul 2014). SThe contentious issue of surrogacy in Québec. Impact Ethics.
- L’Espérance, A. (19 Jun 2014). Socializing access to fertility treatments in Québec. Impact Ethics.
- Burns, C., Cool, R. & Falter, S. (11 Jul 2013). We are egg donors. Impact Ethics.
- Baylis, F. & Downie, J. (17 Dec 2013). Wishing doesn't make it so. Impact Ethics.
- Cohen, S. (29 Aug 2013). Post-Pratten proposal. Impact Ethics.
- Overall, C. (18 Jul 2013). "Surrogacy" and parental licensing. Impact Ethics.
Select Journal Articles
- Baylis, F. Letter to the editor: (forthcoming, 2018). Canada's prohibition on payment for surrogacy, eggs, and sperm. Journal of Obstetrics and Gynaecology Canada, Epub ahead of print: 1-2, https://doi.org/10.1016/j.jogc.2018.08.005.
- Snow, D., Baylis, F., and 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.
- 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.
- Motluk, A. (18 Dec 2013). First Prosecution Under Assisted Human Reproduction Act Ends in Conviction. CMAJ News.
- 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, ON, Canada.
Select Policy Contributions
- Baylis, F. (13 Mar 2018). Where to from here? A Canadian strategy for AHR. Path forward for the Assisted Human Reproduction Act. Ottawa, ON: Best Brains Exchange. [PDF - 2163 KB].
- Baylis, F., & Cattapan, A. (1 Sept 2017). Letter to Minister Taylor explaining critical commentary on Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals.
- Baylis, F., & Cattapan, A. (31 Aug 2017). Commentary on Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals.
- Baylis, F. & Downie, J. (27 Nov 2016). Letter to Minister Philpott and critical commentary on Health Canada's plan to introduce regulations to support the Assisted Human Reproduction Act.
- Cattapan, A. (25 Nov 2016). Letter to Minister Philpott and critical commentary on the prepublication (notice of intent) of regulatory proposals to bring sections 10, 12, and 45 to 58 of the Assisted Human Reproduction Act.
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?
1993 - 2014
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 eggs, sperm, and embryos, as well as payment for contract pregnancy (surrogacy).
In the Canadian parliamentary debates leading up to the 2004 AHR Act, there was an all-party agreement against the commercialization of human reproduction. This is reflected in criminal prohibitions in the 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. This section would also provide the opportunity for surrogates to receive reimbursement for loss of work-related income in certain circumstances. For fourteen years following the introduction of the Act, no regulations on expenditures had been written, and section 12 of the legislation was not in force. The absence of regulations detailing how and in what ways reimbursements could occur, left many involved in assisted reproduction in a complex legal situation.
In response to the lack of clarity, Jocelyn Downie and Françoise Baylis wrote 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 was 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)
Additionally,
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.
Amidst the lack of clarity, 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. The 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 Downie and 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 that offer vague examples of permissible expenditures.
Picard’s case emphasized 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".
2015 - present
Since 2015, the Canadian government has been moving towards introducing regulations that would detail and formalize the process of reimbursement for gamete donors and surrogates in keeping with the 2004 Assisted Human Reproduction Act (AHR Act). Although questions posed in 2013 have not been completely answered, this movement marks a shift in the direction of clarity.
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.
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.
Moving ever-closer to introducing regulations, in July 2017 the federal government 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 included 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 Ethicsparticipated 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].
More than fourteen years after the Act came into force, on October 26, 2018 Health Canada released proposed new regulations to strengthen the AHR Act. Once complete and passed, these regulations should offer clear guidance for potential donors, surrogates, parents, doctors, and agencies managing assisted reproduction. The proposed regulations detail what expenditures may be reimbursed and by what methods.
While debates surrounding the reimbursement have been taking place, the question of commercializing surrogacy, egg and sperm donation has returned. At a press conference in Montréal on March 27,, 2018, Mr. Housefather (a Liberal Member of the Canadian Parliament) introduced a private member's bill suggesting the commercialization of assisted human reproduction.
Both Cattapan and Baylis support Health Canada's recent efforts to strengthen the 2004 AHR Act by introducing relevant regulations and have stated that Housefather's bill could potentially undermine Health Canada's work in this regard. 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 would contravene 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.
As Cattapan has noted, we legislate in this area as a means to help prevent worst case scenarios of commercialization of the human body. Continuing to treat payments for human eggs, sperm, and pregnancy contracts as 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 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.
Further Reading
Select Impact Ethics Blogs
- Baylis, F. (29 Oct 2018). Reimbursing surrogates & donors. Impact Ethics.
- Baylis, F., & Cattapan, A. (2 Apr 2018). Paying surrogates, sperm and egg donors goes against Canadian values. The Conversation. Re-published 6 Apr 2018. Impact Ethics.
- Baylis, F. (2 Apr 2018). Let's ask a different question about surrogacy. Impact Ethics.
- Coeytux, F., Darnovsky, M., Berke Fogel, S. & Galpern, E. (21 Dec 2017). New ART regulations require feminist voices. Impact Ethics.
- Cattapan, A., & Baylis, F. (27 Sept 2017). Egg donors and surrogates need high-quality care. The Conversation.
- Cattapan, A., Cameron, A. & Gruben, V. (24 July 2017). When women are surrogate mothers: Is that work? The Conversation.
- Su, Yegang. (15 Mar 2017). Public opinion on legalizing surrogacy in China. Impact Ethics.
- Cattapan, A. (18 Nov 2016). Clarifying the AHR Act after 12 long years. Impact Ethics.
- White, P. (28 Sept 2016). Hidden from view: Canadian surrogacy. Impact Ethics.
- Lippman, A. (3 Oct 2016). Words matter: "Hired Womb" vs. "Birth Mother". Impact Ethics.
- Gruben, V. (6 Jul 2016). CFAS Guidelines on third party reproduction. Impact Ethics.
- White, P. (14 Apr 2016). Canada is a booming foreign surrogacy destination. Impact Ethics.
- Gerber, P. (17 Feb 2016). Making commercial surrogacy illegal only makes aspiring parents go elsewhere. The Conversation.
- Snow, D. (13 May 2015). Manufacturing consensus on commercial surrogacy. Impact Ethics.
- Busby, K. (3 Feb 2015). Is it time to legalize commercial surrogacy in Canada? Impact Ethics.
- Deveaux, M. (26 Nov 2014). Is cross-border egg donation exploitative? Impact Ethics.
- L’Espérance, A. (22 Jul 2014). SThe contentious issue of surrogacy in Québec. Impact Ethics.
- L’Espérance, A. (19 Jun 2014). Socializing access to fertility treatments in Québec. Impact Ethics.
- Burns, C., Cool, R. & Falter, S. (11 Jul 2013). We are egg donors. Impact Ethics.
- Baylis, F. & Downie, J. (17 Dec 2013). Wishing doesn't make it so. Impact Ethics.
- Cohen, S. (29 Aug 2013). Post-Pratten proposal. Impact Ethics.
- Overall, C. (18 Jul 2013). "Surrogacy" and parental licensing. Impact Ethics.
Select Journal Articles
- Baylis, F. Letter to the editor: (forthcoming, 2018). Canada's prohibition on payment for surrogacy, eggs, and sperm. Journal of Obstetrics and Gynaecology Canada, Epub ahead of print: 1-2, https://doi.org/10.1016/j.jogc.2018.08.005.
- Snow, D., Baylis, F., and 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.
- 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.
- Motluk, A. (18 Dec 2013). First Prosecution Under Assisted Human Reproduction Act Ends in Conviction. CMAJ News.
- 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, ON, Canada.
Select Policy Contributions
- Baylis, F. (13 Mar 2018). Where to from here? A Canadian strategy for AHR. Path forward for the Assisted Human Reproduction Act. Ottawa, ON: Best Brains Exchange. [PDF - 2163 KB].
- Baylis, F., & Cattapan, A. (1 Sept 2017). Letter to Minister Taylor explaining critical commentary on Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals.
- Baylis, F., & Cattapan, A. (31 Aug 2017). Commentary on Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals.
- Baylis, F. & Downie, J. (27 Nov 2016). Letter to Minister Philpott and critical commentary on Health Canada's plan to introduce regulations to support the Assisted Human Reproduction Act.
- Cattapan, A. (25 Nov 2016). Letter to Minister Philpott and critical commentary on the prepublication (notice of intent) of regulatory proposals to bring sections 10, 12, and 45 to 58 of the Assisted Human Reproduction Act.