June 8, 2021
Honourable senators, I rise today to speak to Bill S-202, An Act to amend the Assisted Human Reproduction Act. I would like to thank my colleague Senator Moncion for her leadership in this important debate.
The objective of Bill S-202 is to amend the Assisted Human Reproduction Act to decriminalize payment for sperm and ova donation, as well as for surrogacy in certain circumstances.
For decades, advocates have called for the legalization of payment for sperm and ova donation and for surrogacy, arguing that the current law creates significant barriers for prospective parents, donors and surrogates.
Canada’s assisted human reproduction system is wholly altruistic. The current law prohibits both payments to a surrogate mother and the purchase of sperm and ova from a donor. The current law does, however, permit compensation for certain expenditures incurred by the donor or surrogate given that there are receipts for them.
To understand Canada’s long-standing approach to reproduction, specifically its non-commercialization, one must begin with a brief historic overview of the law.
The conversation about assisted human reproduction in Canada began in 1978 when the first child was conceived through in vitro fertilization, or IVF, in Britain, which coined the phrase “test tube baby.” The concept that a child could be conceived through non-traditional means and with the help of assisted reproductive technology captured the minds and interest of Canadians.
Many argued that these new technologies presented ethical dilemmas that warranted careful consideration. As a result, the federal government appointed the Royal Commission on New Reproductive Technologies in the fall of 1989.
The extensive mandate of the royal commission was to inquire into and report upon “current and potential medical and scientific developments related to new reproductive technologies . . .”considering in particular their “social, ethical, health, research, legal and economic implications . . . .”
Over the four years the royal commission consulted widely; more than 40,000 people were involved in their work. In 1993, the royal commission released its two-volume final report entitled Proceed With Care, which laid out the foundation for a legislative framework on assisted human reproduction.
The royal commission identified eight overarching principles, which guided their decision making: individual autonomy, equality, respect for human life and dignity, protection of the vulnerable, non-commercialization of reproduction, appropriate use of resources, accountability, and balancing of individual and collective interests.
To explain the principle of non-commercialization of reproduction, they wrote:
Commissioners believe it is fundamentally wrong for decisions about human reproduction to be determined by a profit motive — introducing a profit motive to the sphere of reproduction is contrary to basic values and disregards the importance of the role of reproduction and its significance in our lives as human beings. Commodifying human beings and their bodies for commercial gain is unacceptable because this instrumentalization is injurious to human dignity and ultimately dehumanizing.
They emphasized the need to uphold Canadian values, the most important of which is the preservation of human dignity through the non-commercialization of human life.
A by-product of the royal commission’s work, the Assisted Human Reproduction Act, became law in 2004. The law enshrines the aforementioned guiding principles and codifies the parameters for assisted human reproduction that were first identified by the royal commission. It also criminalizes certain activities, while regulating others.
Honourable colleagues, the reason for this historic overview is to contextualize the conversation we are having today. A first analysis of Bill S-202, now before us, raises some questions. The first is in the repeal of one of the seven declaration statements found under section 2(f) of the Assisted Human Reproduction Act, which states: trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition;
While it can be argued that health and ethical concerns do not, on their own, justify the prohibition of the commercialization of reproduction, one cannot dismiss the risks associated with sperm and ova donation, IVF and surrogacy. For example, there are a range of risks associated with surrogacy, which can be physical, social, legal and psychological in nature. Some women experience adverse health effects, like migraines, high blood pressure and diabetes. Others can develop serious complications, which can lead to permanent infertility. Emotional risks include attachment to a child that must be relinquished and postpartum depression.
Ethical risks fall on a continuum; how to respect an individual’s autonomy while also ensuring their protection from exploitation. A complete removal of this crucial principle from the Assisted Human Reproduction Act would negate the serious risks associated with assisted human reproduction — ones that must be considered carefully by those who plan for surrogacy and gamete donation.
Another question pertains to the proposed replacement of section 6 of the Assisted Human Reproduction Act with eligibility requirements for prospective surrogate mothers. Section 6 of the act prohibits several actions, namely payment for surrogacy, payment for intermediaries and purchase of gametes. By removing these sections, the law would decriminalize these activities, essentially rendering them as legal without explicitly saying so.
Professor Jenni Millbank, from the University of Technology Sydney, argued in her 2015 paper Rethinking “Commercial” Surrogacy in Australia, that:
. . . the body of empirical studies does provide compelling evidence for surrogacy as an elected practice that has provided satisfaction to the great majority of women who have undertaken it in the domestic national context. These studies taken together demonstrate that the presence or absence of payment to the surrogate mother is not the defining feature of the experience for her.
While one can focus on the debate of the ethics of commercialization and commodification of assisted human reproduction, perhaps what should demand some of our attention is the plethora of deep-rooted issues entrenched in our current system, which Bill S-202 does not adequately address.
We should first consider the timeline of the regulations of the Assisted Human Reproduction Act. While the act became law in 2004, several of its provisions remained dormant for over a decade. As an example, the federal government released regulations related to reimbursement only in June 2019, 15 years after the law was passed.
In her second reading speech, Senator Moncion informed us that Bill S-202 would come into force 180 days after Royal Assent, which would allow, “the federal government and provincial legislatures a reasonable amount of time to exercise their regulatory powers, if necessary.”
Well, I ask, however, given the federal government’s record, the question remains: Will 180 days be sufficient for the drafting of new regulations or will important aspects wait another 15 years to be written?
Surely, the changes proposed by Bill S-202 will result in repeated calls for greater clarity, given the newfound questions that will be dealt with only through regulatory clarity. Unlike in the United States, surrogacy and gamete donation programs in Canada lack oversight and are unregulated and unlicensed. Data collection is inconsistent and fragmented. Collected data is mostly anecdotal in nature.
A study published in the Journal of Obstetrics and Gynecology Canada in June 2020 found that information regarding surrogacy in Canada was lacking. The author notes that available information is “mostly related to the United States” and that “participants were unsure how to assess and evaluate the authenticity of such processes.” The study concludes that “the absence of official Canadian guidelines impeded provision of comprehensive and trustworthy data.”
Last year, CBC News conducted a thorough, three-month investigation into surrogacy in Canada. They interviewed dozens of people, including parents, surrogates and lawyers. They raised an abundance of concerns. In one instance, surrogates said that they were encouraged by Canadian Fertility Consulting, a surrogacy agency based in Cobourg, Ontario, to “collect as many receipts as possible to ensure they hit their monthly maximum allowance.”
In another case, multiple surrogates admitted that their agencies sent them new profiles of intended parents within days of their due date. Some women expressed that they felt “hounded” to commit to a new couple right away.
It is evident that the lack of standards and oversight of surrogacy in Canada fails to protect prospective parents, surrogates and donors — a serious issue that this proposed legislation does not correct. It should be noted that the original Assisted Human Reproduction Act established a regulatory agency; Assisted Human Reproduction Canada. The act, however, was challenged by the Government of Quebec, and in 2010 a decision from the Supreme Court of Canada overturned several provisions, including the establishment of the agency, which was inevitably shut down in 2013.
While it was argued by Senator Moncion that the repeal of section 6 would allow provinces to regulate the assisted human reproduction industry, I fear that this proposed change will not incentivize action. If we simply remove prohibitions from the current law, what will guarantee that the provinces will take measures to regulate the industry?
Honourable senators, as part of this discussion, allow me to present two international examples as case studies. India has been the epicentre for reproductive tourism for years, operating a commercial surrogacy system since 2002. Due to the accumulation of reported incidents involving exploitation, the Government of India introduced legislation in 2019 banning all forms of commercial surrogacy.
In the final report of the Select Committee on the Surrogacy (Regulation) Bill, 2019, it is explained that this bill seeks to regulate surrogacy to “. . . stop exploitation of poor vulnerable women; to ensure protection of rights of the child born out of surrogacy . . . .” This legislation became law last year, extinguishing a multi-billion-dollar industry.
On the other hand, Israel was the first country to institutionalize state-controlled surrogacy. In Israel, surrogacy is not only legal but remunerated and government supervised. The law, which was passed in 1996, creates a system wherein every surrogate contract must be approved by the Board for Approval of Surrogacy Agreements. The members of the board are appointed by the Minister of Health and include physicians, a clinical psychologist, a social worker, a public representative who is a jurist and a clergyman. This system allows for contracts to be monitored and payments to surrogates to be capped. It also encourages robust data collection.
Honourable senators, a national conversation about Canada’s assisted human reproduction laws is long overdue. We must draw on the expertise of nations such as the United States, United Kingdom, India and others, who have studied assisted human reproduction and best practices for years. We are not short of sound evidence.
Like Senator Moncion, I, too, agree that this is an opportune time to carefully study and review this subject matter, so that we can modernize our policies to reflect the current day.
However, I question whether a private member’s bill is the right approach at this stage. A debate on this proposed piece of legislation would restrict our hearings to only the scope of the bill, with broader questions necessitating fulsome evidence collection on assisted human reproduction beyond our reach.
We would benefit more from a comprehensive study of the subject matter — a blank slate — with no preconceived ideas, to allow us to understand the unintended consequences of changing the current framework, as well as options for other frameworks which can ultimately be addressed in a piece of legislation.
It is without doubt that Bill S-202 is well intentioned, but are we not putting the cart before the horse?
According to the Public Health Agency of Canada, roughly one in six couples in Canada experience infertility — a number that has doubled since the 1980s. We owe it to these couples and also same-sex couples and individuals to expand our knowledge and create a system that not only protects their rights and agency but also the rights and agency of their surrogates and gamete donors.
As is written in the title of the final report of the Royal Commission on New Reproductive Technologies, we should “Proceed with Care.”