Why decriminalisation of paid surrogacy is not enough

According to the Assisted Human Reproduction Act, payment for surrogacy, for arranging the services of a surrogate mother and for egg and sperm donation is illegal. Anthony Housefather, a member of Parliament, announced a plan to put forward a private member’s bill to change this. His proposed bill, which aims to decriminalise these payments, has generated heated debates and sparked public discussions about third party reproduction in Canada.

There are some good reasons for decriminalising payment for surrogacy and gametes. For example, there appears to be a dearth of available gamete doors and surrogates in Canada, creating access issues for intended parents. Some intended parents are paying gamete donors and surrogates despite the ban, but since it is illegal there is no one for these individuals to turn to if one party does not fulfill their end of the bargain. Other intended parents are seeking gamete donors and surrogates in other countries, and/or using gametes that have been shipped to Canada. However, the ability to access these services abroad is limited to people of a particular socio-economic demographic and there are concerns about the quality of care. Moreover, it is hypocritical to prohibit payment for sperm, eggs and surrogacy within Canada, while allowing Canadians to go elsewhere for these services.

Despite these reasons to decriminalise payment for surrogacy and gamete donation, decriminalisation alone is not enough to support the ethical provision of third party reproduction. There are some other things that we need, and should, prioritise in public discussions.

First, we need to include the voices of intended parents, egg donors, sperm donors and surrogates. In particular, people need to be able to share their honest accounts of traveling abroad, and of paying for, or being paid for surrogacy or gamete donation without risk of legal repercussions, so that we can get a full understanding of the current situation. While obviously these discussions need to include men, assisted reproductive technologies are applied more often and more invasively to women’s bodies. This conversation needs to include the voices of women, whose perspectives were in many ways overlooked when feminist control of the Baird Commission was lost.

Second, conversations about decriminalisation need to coincide with conversations about improving medical care and collecting research on the long-term health effects of egg donation. As I have stated in prior blogs, and as academics like Vanessa Gruben have pointed out, there are concerns about how the business nature of the fertility market undermines the medical care that egg donors and surrogates receive. If one of the goals of decriminalising is to encourage more Canadian surrogates and gamete donors to participate, then more egg donors and surrogates will be receiving medical care within Canada. Part of improving medical care means having a better understanding of the long-term risks to egg donors so that egg donors can make an informed decision about donation. Thus, we need to talk about the lack of information that exists, and encourage people’s participation in this kind of long-term data collection.

Third, we need to consider the role of provinces in regulating and monitoring gamete donation and surrogacy, and the possibility of collaboration between provincial governments. In his National Post op-ed Housefather discusses how the provinces could create a framework for compensation, that there could be licensing and regulation of agencies, and that we should have a registry to keep track of information for donor-conceived children. I am not convinced that de-criminalisation is going to be the impetus that the provinces need in order to regulate these issues. For instance, provinces could have already been tracking information for donor-conceived children but have not. If there is little or no impetus from the provinces, then this will leave us with no regulation, or gaps in regulation between the provinces.

Finally, after many years of waiting, it seems as though we are finally going to have regulations on reimbursement. Lack of clarity, because of this missing regulation, has been a major complaint about the Assisted Human Reproduction Act, leading to uncertainty about what is legal. As a first step, it might be prudent to assess how these regulations affect the sphere of assisted reproductive technologies in Canada before making a decision about decriminalisation.

Ultimately, through his proposed private member’s bill, Housefather seems to have caught the attention of the country. I commend him on generating a much needed conversation about the issues with Canada’s ban on paying for gamete donation and surrogacy and on being paid to act as an intermediary between surrogates and intended parents. Now that we have the country’s attention we need to pay attention to the voices of intended parents, gamete donors and surrogates, and we need to discuss important issues that are tied to decriminalisation. A conversation about decriminalisation alone is not enough.

*Katie Hammond [2011] is a second-year law student at McGill University. She did her MPhil in Multi-Disciplinary Gender Studies at the University of Cambridge. This is an edited version of an article which was first published by Impact Ethics here. Picture credit of sleeping newborn infant by Andrés Nieto Porras from Palma de Mallorca, España c/o Wikimedia Commons.