No. Proposed changes are based on misinformation
Prime Minister Justin Trudeau has stated it is time for Canadians to have a discussion about payment for surrogacy, eggs and sperm.
This comes on the heels of a press conference held on March 27, in which Liberal member of Parliament Anthony Housefather announced his plan to introduce a private member’s bill that would create an open market in reproductive capabilities and tissues.
The Assisted Human Reproduction Act permits reimbursement of receipted expenditures for surrogacy and gamete donation and prohibits payment for same.
Housefather wants to eliminate the act’s commitment to prohibit “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends.” And, more specifically, he wants to remove the prohibitions on payment for surrogacy and the sale of human eggs and sperm.
While the arguments in support of this plan have been swirling around for some time, they perpetuate a great deal of misinformation.
First, there is the claim that Canadians are forced to go to the United States to engage in assisted reproduction because of a lack of availability in Canada. According to Housefather, “Canadian couples should not have to go to the U.S. and pay to have their baby.”
This claim is problematic for several reasons, including that Canadian couples do not “have to go” anywhere to use assisted human reproduction. They can access reproductive technologies in Canada if they are willing to abide by Canadian law.
A problem only arises for those who want to act outside of the law, which limits payments to reimbursement.
Furthermore, this claim elides the fact that currently there is more surrogacy in Canada than ever before. Nearly 650 attempts at creating surrogate pregnancies were reported by the Canadian Fertility and Andrology Society in 2016, up from less than 300 in 2010.
Moreover, Canada is becoming known as a “surrogacy destination” for other places, in part because surrogates receive high-quality care from the public health care system. Surrogacy services (without payment to surrogates) is growing in Canada, not shrinking.
Second, the suggestion that the Assisted Human Reproduction Act was drafted at a time when the voices of LGBTQ people and infertile families where silent (or silenced) is simply untrue. The Act is based on the work of the Royal Commission on New Reproductive Technologies in the 1980s and 1990s, and most of the drafting occurred in the early 2000s. The act finally came into force in 2004 at a time when LGBTQ people were advocating around all sorts of family issues, including marriage, pensions, adoption rights and so on.
Réal Ménard, one of the first openly gay members of Parliament, worked with LGBTQ stakeholders at the time to include provisions to ensure that clinic doors would be open to people regardless of their sexual orientation.
Further, infertile people were included in every stakeholder and public consultation on the act, often advocating for the reimbursement of expenses, but not the commercialization of eggs, sperm or surrogacy.
Third, Housefather and others argue that Canada should modernize its law so it aligns with practice in the United States and conforms to the mores of contemporary global society. But globally commercial surrogacy is the exception, not the rule.
Very few jurisdictions around the world — some American states, Russia, Georgia, Ukraine and Iran — permit payment for surrogacy. Some countries that previously welcomed Westerners seeking to pay for surrogacy — including Nepal, Thailand, India and Mexico — are now increasing regulations to control (and in some cases to eliminate) their commercial markets.
Countries with which Canada has historically been aligned (including the United Kingdom, Denmark, New Zealand and most of Australia) have laws banning commercial surrogacy that are very similar to ours.
What Canada needs is improved federal intervention to ensure that assisted reproduction is well-regulated, and that the care of surrogates and others is not left to the open market.