The Assisted Human Reproduction Act (the “AHRA”) regulates the sale and purchase of sperm, egg and embryos; and surrogacy in Canada. It forbids the commercialization of human life and commodification of women by prohibiting payment for gamete donation and surrogacy. Altruistic donations and surrogacy are permitted.
The AHRA imposes large penalties for violating the Act – up to half a million dollars or ten years in jail. In many people’s view, the punishment does not fit the crime.
On February 15, 2013 Tom Blackwell of the National Post wrote an article entitled “Illegal purchase of sperm, eggs and surrogacy services leads to 27 charges against Canadian fertility company and CEO”. In short, an Ontario surrogacy consultant and her company Canadian Fertility Consulting were charged for violating the AHRA. The consultant and her business allegedly:
- purchased, offered to purchase or advertised for the purchase of sperm or egg from a donor or person acting on behalf of a donor
- paid or offered to pay a female to be a surrogate mother, or advertised payment of the same
- accepted payment for arranging the services of a surrogate mother, or offering or advertising to do so
This story raises numerous issues about the controversial area of third-party assisted human reproduction.
Fertility and surrogacy consultants, such as the one in Blackwell’s article, perform what many describe as an invaluable service to infertile individuals and same-sex couples. They connect potential donors and surrogates with a person or couple who require assistance to have a child. They support intended parents in the difficult task of navigating the system. They help donors and surrogates provide the gift of life to others. And they can help all parties avoid exploitation. As stated in Blackwell’s article by one surrogacy consultant, without consultants people will be “just left with Kijiji and Craigslist”.
On the other hand, where there are vulnerable people, there will be those who take advantage.
The consultant in the article was charged for accepting payment for arranging the services of a surrogate mother (or offering or advertising to do so). We do not yet know the details of the charges. But in any event, the case begs the question: are the services of a surrogacy consulting business that different than a fertility clinic that profits from helping its clients have a child with the assistance of a surrogate? And do we want to penalize these consultants under criminal law if the surrogacies they arrange are altruistic in nature?
There is significant room for improvement in the AHRA, but many of the potential amendments involve ethically-charged public policy considerations. However, in this case it appears that there may be a relatively non-controversial improvement: perhaps the AHRA could be amended to expressly permit a surrogacy consulting business to accept payment for arranging the services of a surrogate mother where the surrogacy is altruistic. This would continue the tradition of prohibiting commercial surrogacy while allowing surrogates and intended parents to benefit from the value of third-party consultants.
The question is, what as a society do we really want to criminalize? Compensation of any kind in relation to third party reproduction? Or exploitation of vulnerable individuals?
Update (July 2, 2013):
It has been reported that Canadian Fertility Consulting is planning a trip to Western Canada this summer to meet with potential intended parents, surrogates and egg donors. Despite the charges, CFC shows no signs of slowing down.
Disclaimer: The phrase “arranging for the services of a surrogate mother” is not defined in the AHRA and there are multiple interpretations of the phrase. This blog is not legal advice and should not be relied upon to make any legal decisions. Please consult with a legal advisor or Contact Us before entering into any third party reproductive agreements.
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