Fertility law in Canada is governed by the Assisted Human Reproduction Act. This Act finally came into force in 2004, after legal discussions that started as early as the 1980s. The legislation was largely based on the December 2001 report by the Standing Committee on Health entitled “Assisted Reproduction: Building Families“, which was the result of two yeas of consultations. The report stated that commercial surrogacy should be prohibited, and altruistic arrangements for surrogacy should be discouraged. It recommended against payment for surrogacy due to concerns overs exploitation and coercion, and set out an altruistic framework under which surrogacy should take place. This framework was essentially incorporated into the Assisted Human Reproduction Act.
What is Permitted by Fertility Law in Canada?
The Assisted Human Reproduction Act permits surrogacy, egg, and sperm donation. Under sections 6 and 7 of this act, it prohibits payment for reproductive services and materials, but under section 12 it permits reimbursement for receipted expenditures in accordance with regulations (these regulations so far do not exist). The Act also prohibits arranging for the services of a surrogate mother, offering to make such an arrangement for consideration, or advertising the arranging of such services.
The Assisted Human Reproduction Act does not criminalize women acting as surrogates. What is criminalized is the payment to the surrogate. There are strict penalties for making such payments, including large fines and up to 10 years in jail.
The Government of Quebec challenged the constitutionality of the Assisted Human Reproduction Act. In 2010, the Supreme Court of Canada ruled on this and a deeply divided court upheld section 12 regarding reimbursement of receipted expenses, but found many other provisions of the Act to be unconstitutional.
In 2012, the Federal government repealed the provisions of the Assisted Human Reproduction Act that the Supreme Court of Canada had found to be unconstitutional.
In 2016, Health Canada started the process to promulgate the regulations under section 12 of the Act, dealing with what can be reimbursed, and what cannot be. This process is still ongoing. It is expected to be completed by the end of 2018.
What has been the Impact of this on Fertility Law in Canada?
Fertility law in Canada is a shambles. Key provisions of the governing statutory framework have needed to be repealed due to unconstitutionality, and regulations that were to be promulgated have not yet been, despite the passage of 14 years. This has led to a grey market in surrogacy arrangements, particularly surrounding payments, with reimbursement for spa visits and car repairs among other expenses. As well, agencies and brokers have arisen who charge steep fees to match intended parents and surrogates, a direct breach of the Act, with Health Canada not taking any action against them despite over advertising of their services.
There has only been one prosecution in Canada for a breach of the Assisted Human Reproduction Act, against Leia Picard (now Leia Swanberg) and her company Canadian Fertility Consulting. She was fined $60,000, essentially for paying money to egg donors and surrogates. She is still in business.
Foreign Intended Parents
Canada is a great place for foreign intended parents to work with a Canadian surrogate, and I think that approximately one third of all surrogacies in Canada involve foreign intended parents. A lot of countries that were traditionally open to foreign intended parents, such as India and Pakistan, have in recent years closed down to this. As well, health care in Canada is publicly funded, so the medical costs involved are small. As well, Canada has paid maternity leave, so the surrogate does not lose much financially by taking time off work.
Regulations under section 12
Since 2016, Health Canada is working on these. In February 2018, they published a Summary of Public Feedback, and the expectation is that by the end of 2018, there will be regulations under section 12 of the Assisted Human Reproduction Act which outline what expenses can be reimbursed.
What is Bill C-404?
In May 2018, Anthony Housefather introduced Bill C-404 to the House of Commons. It is simply a private members bill; however, it has gained a lot of momentum and support. It proposes several radical changes to fertility law in Canada, including:
* decriminalizing payment for sperm donation, ovum donation, and surrogacy
* repealing and replacing sections 6, 7, and 12 of the Assisted Human Reproduction Act
* repealing section 2(f) of the Assisted Human Reproduction Act, which provides that “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition”
If passed, Bill C-404 would completely change fertility law in Canada, leading to an open an unregulated market for surrogacy and gametes. From a constitutional law perspective, this is problematic. The Assisted Human Reproduction Act was passed based on the Federal criminal power to criminalize payments. If there are no criminal powers exercised under the act, then it is likely that the Federal government does not have jurisdiction to regulate it. If such an act were passed, it could well be struck down, leaving the field open for provincial regulation, with significantly different legal regimes between the provinces.
In any event, this is a dynamic situation, and we will be keeping an eye on any developments in fertility law in Canada.