In February 2013 we discussed the 27 criminal charges against a surrogacy Agency in our blog “Charges Against Fertility Consulting Business”. The surrogacy agency and its owner were accused of paying egg donors and surrogates (both of which are against the law in Canada), among other things.
On December 13, 2013, some of those charges became guilty pleas.
It appears some of the 27 charges were not upheld, although the full details are unclear at this time.
The questions that arise now are, what does this decision mean for the fertility community in Canada and, in particular, what does this mean for former and existing clients of the Agency?
The guilty pleas regarding the purchase of eggs do not alter the legal landscape. Section 7(1) of the Assisted Human Reproduction Act (“AHRA”)states that no person shall purchase eggs from a donor or a person acting on behalf of a donor. The agency pleading guilty to purchasing eggs does not change the law – it means they violated the law and have been penalized for doing so.
Under the AHRA it is against the law to pay a person to be a surrogate. This prohibition applies to intended parents, as well as surrogacy agencies, in Canada. The Agency recruited surrogates and paid them to act as surrogates, with bonuses for carrying multiples or undergoing Caesarian sections. The surrogates should never have been paid anything more than their reasonable out-of-pocket expenses. Again, this case does not change the law – it only tells us that the Act was violated. However, it is noteworthy that the section under the AHRA on reimbursements of expenditures is not yet technically in force, and the regulations relating to reimbursements are not yet available. This means that the Agency – and everyone else in the field – must operate in a context in which it is not always clear what reimbursements are legally permissible, and which would constitute payment.
Arranging the Services of a Surrogate
The RCMP charged the Agency for 3 counts of violating the section of the AHRA that prohibits a person from accepting consideration (i.e. money or other valuable goods or services) for arranging the services of a surrogate. The Agency reportedly pled guilty to this charge.
Fertility lawyers across the country were hoping there would be a court decision to bring clarity to the phrase “arrange for the services of a surrogate”. The phrase is somewhat ambiguous and it is therefore difficult to advise clients on the legality of surrogacy agencies.
At this time it appears there is no judgment to shed light on the phrase. However, the fact that the Agency was charged and pled guilty further supports the argument that for-profit surrogacy agencies may be in violation of the AHRA. This is unfortunate because, as discussed in a previous blog, many of these agencies perform valuable services to intended parents and surrogates.
The CFC case is the first of its kind. It is possible the RCMP will investigate other surrogacy agencies, or others who may be in violation of the AHRA‘s other clauses pertaining to surrogacy or gamete donation. Or this case may be a one-time occurrence, brought to the attention of the RCMP because of criminal activity by a different individual in the United States.
The truth is, we just don’t know what will happen next.
What we do know is this: there are many gray zones in the area of fertility law. There are likely lines somewhere in the gray zone, but we don’t know exactly where they will be drawn or when.
It is recommended that intended parents, surrogates, fertility clinics and others in the field proceed with caution and act in a conservative manner. You should work with professionals – legal, medical and otherwise – who you trust will do the right thing and who will guide you to act in accordance with the AHRA.
If you have questions about how this case impacts you, please contact Lisa Feldstein Law Office. DO NOT RELY ON THIS BLOG TO MAKE ANY LEGAL DECISIONS. Please consult with your legal advisor or contact Lisa Feldstein Law Office to find out how the law applies to your particular circumstance.
 See http://www.cmaj.ca/site/earlyreleases/18dec13_first-prosecution-under-Assisted-Human-Reproduction-Act-ends-in-conviction.xhtml and http://news.nationalpost.com/2013/12/15/canadian-fertility-consultant-received-about-30000-for-unwittingly-referring-parents-to-u-s-baby-selling-ring/
through a difficult time?