You can go to jail for up to 10 years if you offer to purchase sperm in Canada. The maximum sentence is on par with certain terrorism offences. Most Canadians are shocked when they hear this. I know that I was.
By comparison, there is no federal law governing the offer to purchase other human materials, such as blood or plasma. These are governed solely by provincial regulations and not criminal law.
Over the last couple of years I have had the opportunity to meet with many of those most directly impacted by the law that criminalizes this activity. It is called the Assisted Human Reproduction Act and was adopted in 2004. It is largely based on proposals from a Royal Commission established in 1988.
Needless to say we live in a different world today. Women wait longer to get pregnant, leading to greater fertility issues. Gay and lesbian couples can get married and want to start families. More and more Canadians need assistance to have children.
While those impacted directly share different perspectives with respect to many of the complex issues involved, the vast majority of surrogates, donors, intended parents, children born of donation and the agencies, doctors and lawyers working to assist them agree with one thing: the current law needs to be revised. I am putting forward a bill to do so.
In combination, the criminalization of payment for sperm donation and stricter Health Canada safety standards have made it too costly to operate a sperm bank in Canada. Since the law was adopted, we have gone from approximately 20 sperm banks in Canada to one.
As a direct result, more than 95 per cent of non-directed sperm in Canada comes from the United States. Ironically, donors in the United States are compensated and those in Canada purchasing the sperm have no ability to ensure that American donors are being accurate in describing themselves or their state of health.
Horror stories exist of Canadian women being impregnated using the sperm of men with psychological or other disorders. In addition, children born of donation generally have no means of knowing who their biological parent was or their health history because of the U.S. preference for anonymity. The current law forces Canadians to rely on the standards and practices of U.S. sperm banks, which we cannot control.
With the advance of technology, Canadians are now also importing a large number of frozen ova into Canada. The same issues apply here.
With respect to surrogacy, intended parents and surrogates explain that the criminal prohibitions put them into a constant state of uncertainty. The regulations that were supposed to have been adopted under the act setting out which expenses are permitted have never been adopted leading to nobody knowing with certainty that an expense reimbursement is legal or not.
No wonder parents with means often choose to leave Canada and hire a surrogate in the United States to avoid any concern about facing prison time.
Furthermore, even though consultations are occurring (finally after 14 years) on what expenses can be reimbursed, parents and surrogates are also fairly unanimous that a set list of permitted expenses may hurt more than it helps. Patching the current law is not the solution. Fixing it is.
We need to decriminalize payment. Let the provinces step in and fully regulate the arrangements between parents and surrogates, agencies and donors, including compensation. This can include caps on payments.
Let’s regulate the agencies out there so that the good ones thrive and the poor ones disappear. Let’s adopt rules to ensure that intended parents are both automatically on the birth certificate. Let’s enforce contracts to ensure surrogates that the intended parents will take responsibility for the baby irrespective of health.
Let’s help children born of donation know the identity of their donors and at the very least have a continually updated knowledge of their health. This will only be possible when we have sufficient domestic eggs and sperm and proper registries across the country.
Laws need to work for the people who are most directly impacted. This one does not.
Anthony Housefather is the member of Parliament for Mount Royal and chairman of the House of Commons Standing Committee on Human Rights.