Waterloo Region Record

Paying surrogates goes against Canadian values

Private member’s bill would remove criminal penalties, but that’s a slippery slope

- FRANÇOISE BAYLIS AND ALANA CATTAPAN Françoise Baylis is professor and Canada Research Chair in bioethics and philosophy, Dalhousie University. Alana Cattapan is an assistant professor in public policy, University of Saskatchew­an.

In Canada, it’s illegal to pay for the services of a surrogate mother or to purchase human gametes — sperm and eggs. These prohibitio­ns are entrenched in the Assisted Human Reproducti­on Act. Some Liberal members of Parliament want to change this.

Anthony Housefathe­r, MP for Mount Royal and chair of the House of Commons Standing Committee on Justice and Human Rights, recently held a news conference to announce that he plans to introduce a private member’s bill to remove the legal prohibitio­ns on payments.

Flanked by fertility doctors, lawyers, intended parents, surrogates and fertility agents, Housefathe­r argued that Canadians should be able to pay — and be paid — for surrogacy, as well as human sperm and eggs. But the planned private member’s bill is ill-conceived (pun intended) for several reasons.

At the outset, it’s important to remember there are sound ethical reasons to prohibit “trade in the reproducti­ve capabiliti­es of women and men and the exploitati­on of children, women and men for commercial ends,” as stated in the Assisted Human Reproducti­on Act. Among these reasons are the need to avoid both the commodific­ation of the human body and the twin risks of exploitati­on and coercion. That’s why the federal government introduced criminal prohibitio­ns on payment for surrogacy as well as human sperm and eggs in 2004.

Why criminal prohibitio­ns? Because according to our Constituti­on, the only mechanism available to the federal government to enforce a ban on payment is criminal law. The division of powers between the federal and provincial government­s is such that health is a provincial responsibi­lity and criminal law is a federal responsibi­lity.

The Assisted Human Reproducti­on Act was carefully drafted to ensure that access to reproducti­ve technologi­es would not be a gateway to commerce in the body. This was a challengin­g piece of legislatio­n to craft, involving considerab­le study, consultati­on and compromise.

Housefathe­r suggests that the act is outdated; that it did not anticipate the creation of non-traditiona­l families. But this is inaccurate. Real Ménard, for example, worked with members of the LGBTQ community to ensure that sexual orientatio­n would not be a barrier to access. It’s important not to ignore or misreprese­nt the intense challenges of a legislativ­e process that was nearly 30 years in the making.

Housefathe­r also suggests that Canadian values have changed since the act came into force. However, recent public commitment to keeping payment out of the blood supply system indicates that Canadian values about payment for bodily tissues may not have changed all that much.

The Assisted Human Reproducti­on Act permits reimbursem­ent of receipted expenditur­es for surrogates and gamete donors in accordance with regulation­s. The problem with this feature of the act, however, is that there are no published regulation­s. This is finally about to change.

After many years of inaction, Health Canada has made a public commitment to strengthen the Assisted Human Reproducti­on Act that includes drafting the regulation­s for reimbursem­ent.

These long-anticipate­d regulation­s will provide much-needed clarity and transparen­cy. Housefathe­r’s proposed bill will undermine the developmen­t of the regulation­s by attempting to eliminate the framework for reimbursem­ent completely.

The federal government has an obligation to address the health and safety of surrogates, sperm donors and egg donors. It also has an obligation to provide clear regulation­s on reimbursem­ent of expenditur­es so that Canadians who want to use surrogates and donor sperm and eggs can do so without running afoul of the law.

 ?? ERAXION DREAMSTIME.COM ?? Human sperm and egg: Some MPs want to change the law, which currently makes it illegal to buy sperm and eggs or to pay for birth surrogates. The authors argue that would be a dangerous change.
ERAXION DREAMSTIME.COM Human sperm and egg: Some MPs want to change the law, which currently makes it illegal to buy sperm and eggs or to pay for birth surrogates. The authors argue that would be a dangerous change.

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