I have been struck by the number of my friends who have been adversely affected by restrictions in Canada related to assisted reproduction. While the views of most Canadians have evolved considerably over the last 20 years as relates to acceptance of non-traditional families, the Assisted Human Reproduction Act adopted in 2004 and based on recommendations from the Baird Commission’s 1993 report remains in force.
Faced with this legislation, which bans payment (beyond expenses) for sperm and egg donors and surrogate-pregnancy services, many Canadians had no choice but to go abroad to become parents.
We need to reconsider the limitations that hamper the ability of capable Canadians to become parents within Canada. These limitations are compounded by the fact that regulations that should have been adopted to clarify what expenses can be reimbursed are still missing. As such, even the limited number of altruistic surrogates are in a legal vacuum.
This issue becomes all the more compelling as some Asian countries have recently tightened regulations on foreign surrogacy agreements. While some U.S. states remain a beacon of hope for Canadians seeking assisted reproduction assistance, we need to offer a made-in-Canada solution so that prospective Canadian parents no longer need to deal with all of the logistical and legal hurdles related to creating and giving birth to a child out of the country and bringing the child home.
Given the complex division of powers in the areas of both health and family law, we need to have discussions between the federal government and the provinces and key stakeholders as to how to fairly permit Canadians across the country to both have children through assisted reproduction and to be legally recognized as parents of these children. We need to permit surrogates, egg donors and sperm donors to be compensated for their services and allow them and the prospective parents to enter into binding agreements that determine who will be legally recognized as parents to a child. These binding agreements must require surrogates and donors who receive compensation to legally waive any rights to be considered parents.
These provisions of the law favour opposite-sex couples where both parties are fertile. Indeed, opposite-sex couples with fertility issues, singles who wish to become parents and same-sex couples face undue challenges to find donors and surrogates in their home country. This is compounded by provincial legislation which makes it difficult or impossible for these individuals to be legally recognized as a baby’s parent.
In addition, the Assisted Human Reproduction Act assumes that becoming a donor or surrogate is so coercive that it imposes hefty fines and lengthy prison terms. It ignores the fact that many men or women may see becoming a donor or acting as a surrogate as an economically rational, not to mention altruistic, choice. In this narrow area, Canada should not criminalize these decisions, especially given the positive outcome of allowing someone to start a family.
We should ultimately recognize there is no value in allowing legislation to stand that makes criminals of those who wish to have children on their own terms, and in a way that fits comfortably with their lives and loved ones. The Supreme Court itself recognizes assisted reproduction is not “an evil needing to be suppressed.”
I know that we can do better. Repealing these provisions of the law and working together with the provinces and stakeholders to adopt federal and provincial regulations which make good practical sense can and should be accomplished during this Parliament.
Anthony Housefather is an attorney and Member of Parliament for Mount Royal and chairman of the House of Commons Standing Committee on Justice and Human Rights.