Ads for surrogate mothers unchecked
Health Canada has made just two attempts to enforce its controversial fertility law since early 2014, mildly rebuking someone who posted bus-shelter ads to hire a surrogate mother, and a company allegedly paying women to donate eggs, internal documents indicate.
Both actions would violate criminal bans in the Assisted Human Reproduction Act, but neither alleged offender was ever prosecuted, the emails and cease- and- desist letters obtained by the National Post under access- to- information legislation indicate.
And they were the lone infractions the department investigated in 2014 and much of 2015, both prompted by complaints from the public.
The documents are more evidence that Health Canada has taken a laissez- faire attitude — or worse — to its own law, critics said Wednesday.
The government is not just turning a blind eye to breaches of the legislation, charged Françoise Baylis, a bioethicist at Dalhousie University.
“These letters — coupled with the failure to investigate and, as appropriate, prosecute — provide shameful evidence of complicity with illegal activity.”
It is telling that someone would even dare to put up a public ad for a paid surrogate, given the law banning commercial surrogacy, echoed Vardit Ravitsky, an ethicist at the University of Montreal.
“The message is going out to the public that ‘ We’re not taking this seriously,’ ” she said. “There is a long track record of inaction.”
Sean Upton, a Health Canada spokesman, said the department handles complaints on their individual merits; in the two recent cases, “the measures taken were considered to be appropriate to prevent further contraventions.”
The Assisted Human Reproduction Act has been on the books since 2004. Even after a 2010 Supreme Court of Canada ruling struck down much of the legislation because it overlapped into provincial jurisdiction, the law made it illegal to buy eggs, sperm or the services of a surrogate.
Donors and surrogates can be reimbursed for expenses, but evidence that many are paid fees above that is easy to find.
In 11 years, however, only one case has ever been prosecuted, and that was at the initiative of the RCMP, not the Health Canada officials tasked with overseeing the fertility industry.
The first complaint in the internal documents came last year from Christopher Newton, a psychologist at London, Ont.’s, Fertility Clinic, about an ad posted in bus shelters there.
Complete with an i mage of a stork carrying a baby and tear- off contact numbers, it offered $ 15,000 for someone willing to act as a surrogate mother, he said.
Newton, since retired, said Wednesday he was not surprised by the poster, because he would hear often from patients who had been asked for upfront cash payments by egg donors and surrogates.
But he said he wanted to let the government know the reality of “this unregulated climate.” Newton lamented that Health Canada never informed him how it handled the case, and fails to release such information publicly.
“You submit this concern, and it seems to go unrecognized, a lack of response,” he said. “That’s not reassuring that any kind of action was taken.”
The second complaint, later in 2014, involved Little Miracles, a Guelph, Ont., company that bills itself as “Canada’s only consultation program” offering egg donations.
In a letter to the firm, Health Canada said it had learned that Little Miracles “may be providing fees to donors for the donation of their ova.”
Upton said an egg donor told Health Canada she had been given payment that had nothing to do with her expenses.
If true, it should cease doing so and ensure that only relevant expenses are covered, says the letter signed by Robert Cushman, a department director general.
Cushman also notes that anyone found guilty of violating the anti-commercialization law could be sent to prison for up to 10 years and fined up to $ 500,000.
Little Miracles did not respond to a request for comment.
Baylis, who sat on the federal agency that briefly oversaw the assisted- reproduction world before being disbanded, said she has implored the government for years to seriously enforce the law — to little avail.
“I know of no other criminal activity where the government’s consistent … response would be to simply write a cease- and- desist letter,” she said.
If Canadian values have changed and an outright ban on paid dona- tion and surrogacy is no longer desired, the legislation should be changed, not j ust i gnored, said Ravitsky.
But there seems to be a lack of political will to do anything, she said.
“It’s a hot potato, always was, always will be.”