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Stop the commercialization of surrogacy

In March, federal MP Anthony Housefather announced his intention to introduce a private member’s bill to decriminalize payment in surrogacy, egg donation and sperm donation arrangements in Canada. If successful, this would be a drastic shift from the current law, which strictly prohibits commercial surrogacy and gamete donation in Canada, imposing a maximum fine of $500,000 and a maximum prison sentence of 10 years (or both) to anyone who contravenes these prohibitions. Housefather alleges that those most expert and involved in fertility are completely unanimous in their support for commercialization.

I respectfully disagree. I am a lawyer who actively practises in fertility law. I do not support the commercialization of surrogacy or gamete donation in Canada. Commercialization of surrogacy, egg donation and sperm donation in Canada would work in the face of core Canadian values — the values that informed the altruistic nature of the Assisted Human Reproduction Act when it was enacted and values that remain relevant (not outdated as Housefather has suggested) in Canadian society today. 

As lawyers in Ontario, we should be actively working to protect these Canadian values while balancing the rights of all vulnerable groups whose lives may be impacted by surrogacy, egg donation and sperm donation in Canada.

The first value is around prohibiting trade in the human body. I believe the majority of Canadians still agree that the sale and purchase of body parts and human tissues should continue to be prohibited in Canada. 

The concept of selling your liver, kidney or even blood in Canada is strongly opposed. Can we truly treat sperm, eggs and embryos as something different from all other bodily tissues? If we place sperm, eggs and embryos on the market, then are we not also committing to a discussion on the sale of all body parts? Moreover, what value do you give to the use of a woman’s reproductive capacity and how would that value be measured?  

The second value is around the health and well-being of women and promoting informed consent. The commercialization of surrogacy and gamete donation will place women at higher risk than men donating sperm. The medical procedures that a woman must undergo to complete an egg donation or act as a surrogate are onerous and risky. Once you place a woman acting as a surrogate or donor in the position of being an “employee” to the intended parents, her power to make an informed decision about what medical procedures she will undergo is minimized, and she is more likely to take medical risks that she would not have otherwise taken. Her decision will be made with the wishes of the intended parents at top of mind, as she will feel a commitment to those individuals who have invested their own money and emotion into her body. The “my body, my baby” tug of war will be far more real than it already is, where women acting as surrogates are prepared to sacrifice their own choices because of their concern for the expense the intended parents are facing paying for the lawyers, the fertility clinics and the surrogacy agency. 

The my body, my baby struggle is already a problem in the current altruistic model. This problem shouldn’t be inflated any further.

The third value is around protecting women and children from exploitation. If a woman’s reproductive capacity can be used to earn money, then the lure of an income for donating eggs or allowing someone to use her womb puts economically vulnerable women — who may not appreciate the risks involved in the process and may not have the funds to access the necessary advice or services needed to fully understand those risks — at risk of exploitation.   

Other countries, such as Thailand and India where commercial surrogacy has been permitted, are now changing their laws to better protect women and children from these risks of exploitation and human trafficking based on their own experiences where these problems could no longer be ignored. With this in mind, we must ask ourselves if moving toward commercial surrogacy would really be symbolic of Canada “catching up” with other countries.

The fourth value is around protecting children from being treated as commodities. We do not buy and sell children in Canada. Adoption laws strictly prohibit payment for a child, and I am not aware of anyone who has taken offence to this or wants to see this changed. But, if we are going to approve a financial transaction where the “product” is a child, then how can we do this without also having to review our policy on adoption?  

A little historical context is also useful. 

The topic of commercializing surrogacy and gamete donation in Canada has recently received a lot of press. Notably, Housefather’s proposed bill is not the first of its kind. In 2014, the then MP for Peterborough, Dean Del Mastro, introduced a similar private member’s bill seeking to repeal the same sections of the Assisted Human Reproduction Act that Housefather is targeting. However, Del Mastro’s private member’s bill did not make it past first reading and received little, if any, press. So, why should we care this time around?

First of all, Housefather has surrounded himself with a group of individuals who support the commercialization of surrogacy and gamete donation in Canada, including the president of the Liberal Women’s Caucus. Secondly, Prime Minister Justin Trudeau has said that decriminalizing payment for surrogacy and gamete donation is an “extremely important issue” and that when the proposed bill is introduced there will be a discussion “about rights and responsibilities that we share as a society.”

I welcome an honest discussion on the question of commercialization and I hope that one takes place. I also hope that Parliament takes the time to seek out and listen to all sides of the argument, to consider what interests each person has in the commercialization debate. I encourage Parliament and other policy-makers to ask themselves whether the person or group advocating for commercialization also stands to gain from commercialization. Finally, I urge all of us to seriously consider the impact such a drastic change in Canadian policy will have on truly vulnerable persons that Canada has worked so hard to protect in recent history.

Erin Lepine is a partner at Nelligan O’Brien Payne LLP in Ottawa, where she practises family law and fertility law.

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