Surrogacy is Not A Crime: Why Surrogacy in Canada Should Be Decriminalized

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(Gianna Petrella is a marketing assistant with Canadian Fertility Consulting and also a first year Bachelor of Commerce student at Nipissing. She lives in Colborne Ontario with her young daughter and is actively assisting with the lobbying efforts of Fertility Advisors during her free time. She wrote this piece for a recent paper for her law class and we are excited to share it.)

 

Perhaps the most controversial aspect in infertility, the payment for surrogacy is often debated. According to the Government of Canada (2013), about 16% of Canadians experience infertility. On top of this large number of couples, couples in the gay community also often explore surrogacy for starting a family. Outside of relevant reimbursements, paying a surrogate in Canada can result in breaking federal law and colossal consequences. The government states that the laws regarding surrogacy exist to avoid the exploitation of women and children. However, the Canadian Assisted Human Reproduction Act (AHRA) contains vague language and outdated laws. Quite often the AHRA works against the surrogate’s best interest by denying the surrogate the right to fair compensation. By exploring the facts in surrogacy legislation, we can see the law is due for revision.

 

In accordance with the Assisted Human Reproduction Act, if an intended parent in a surrogacy arrangement desired to give a gift to their surrogate or perhaps pay them for their commitment, they would face a penalty of up to $500,000 and 10 years in jail (Surrogacy in Canada: What Are The Laws?, 2014). This is due to the Government of Canada’s intention to provide a fair and safe experience for all involved. The goal of the AHRA is to provide regulatory framework to uphold the best interest of the surrogate, intended parents, and offspring. Essentially, the government is trying to avoid the illegal making and “purchasing” of babies. Looking further into the AHRA enables us to see that there are complications with the AHRA’s clauses and its utilization.

 

The Assisted Human Reproduction Act has the intention of protecting all parties involved in surrogacy, however, the AHRA incorporates vague terminology and has grey areas within the legislation. Due to this, the experience is different with each arrangement and often lines are unclear. The AHRA itself was last amended in 2012, making the legislation overdue for updating. On top of the vague laws there is no official governing body regarding surrogacy. The AHRA was set to include regulations, due in 2008, to provide further detail, though it still hasn’t become available yet. Often because of all the irregularities the AHRA goes against a surrogate’s preferences and provides for confusion, thus contrasting the original intent.

“There have been major scientific advancements in these areas, which have benefitted many Canadians as they build their families. Our laws need to adapt so that they can continue to protect the health and safety of Canadians.  By adopting new regulations, we will continue to ensure that the risks posed are minimized and families are supported.” (Cision, 2016)

Instead of heavy criminal consequences against intended parents wanting to gift or pay their surrogates, clearer laws and a governing body would allow for a safer and more supportive experience for surrogates.

 

“When anonymously surveyed by a private agency in 2016, 98% of surrogates and gamete donors agreed with altruistic surrogacy and gamete donation model but supported decriminalization” (Willoughby, 2018). Surrogates feel as though they deserve fair compensation for their arrangement and shouldn’t they? After all, they’re putting their life on the line and devoting themselves to another family for over a year. Unfortunately, the AHRA has no governing or reporting body and surrogacy related opinions are not being heard. The reality is that surrogates deserve compensation for the considerable physical and mental devotion and the AHRA should reflect this fact. It’s also important to note the fact that demand has never been higher for surrogates. With the number of embryo transfers to surrogates increasing by 23% from 2014 to 2015 (As demand for surrogates increases, consulting agencies remain scarce, 2017), the need for revision of the AHRA has never been so required. Surrogates voices deserve to be herd and fair compensation shouldn’t result in criminal consequences. The surrogacy community shouldn’t be left behind when it comes to governing statutes.

 

Canadian government passed the AHRA to protect and set guidelines for surrogates and intended parents. The criminal consequence of breaking these guidelines are there to ensure legislation is followed. Though, it’s recognizable that the AHRA is outdated and is too vague to be of serious value to all parties in a surrogacy arrangement. The government is letting surrogates down with outdated laws and lack of regulatory body. Updating these laws and decriminalizing compensation for surrogacy would put surrogates in a much more fair and favourable position. It should not be criminal for surrogates to receive fair payment for all the sacrifices they make to help the intended parents build a family.

 

References

Balkissoon, D. (2015, February 12). It’s illegal to pay a surrogate mother in Canada. So what would motivate a woman do it? Retrieved from The Globe And Mail: https://www.theglobeandmail.com/life/parenting/an-inside-look-at-the-difficult-process-of-surrogacy/article22953150/

Cision. (2016, September 30). Retrieved from Government of Canada plans to introduce regulations to support the Assisted Human Reproduction Act : https://www.newswire.ca/news-releases/government-of-canada-plans-to-introduce-regulations-to-support-the-assisted-human-reproduction-act-595444131.html

Cribb, R., & Jarratt, E. (2016, Sept 18). Canada’s vague surrogacy laws may be doing more harm than good. Retrieved from The Star: https://www.thestar.com/news/canada/2016/09/18/canadas-vague-surrogacy-laws-may-be-doing-more-harm-than-good.html

Fertility. (2013, 02 04). Retrieved from Government Of Canada: https://www.canada.ca/en/public-health/services/fertility/fertility.html

Surrogacy in Canada: What Are The Laws? (2014, August 11). Retrieved from CTV News: https://www.ctvnews.ca/canada/surrogacy-in-canada-what-are-the-laws-1.1954565

Willoughby, B. (2018, March 20). Marketing Manager, Fertility Advisors. (G. Petrella, Interviewer)

 

 

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