The federal government should overturn a 13-year-old ban and make it legal to pay people to be surrogate mothers or donate sperm or eggs, Canada’s fertility specialists are urging in a major new policy position.
The Canadian Fertility and Andrology Society suggests the public has become more comfortable with “assisted reproduction” generally, and that it’s time to permit carefully regulated commercialization of the key human ingredients.
The 2004 law allows surrogates and donors of egg and sperm to be reimbursed for expenses, but makes it a crime to pay them fees.
We’re left with a position where the law is quite piece-meal and I think Canadians are at a disadvantage
The rule has rarely been enforced, and widely flouted by fertility brokers and others.
Even so, the criminal ban has “severely limited” the number of donors and surrogates available to would-be parents, says the society in its position statement.
“There is an altruistic element to it, but I’ve honestly in my career never met someone who is willing to do that for free for a stranger,” Dr. Jeff Roberts, the association’s president, said in an interview Friday. “But there may be a sizeable number willing to do it if at least they’re compensated for wages and some of their time.”
As it is, many people in Canada wait indefinitely to have children, resort to reproductive tourism in other countries or import eggs and sperm from the United States, where compensating donors is legal, the group says.
Canadians are at a disadvantage “in terms of managing their own fertility care,” said Sherry Levitan, a lawyer and member of the society’s board.
She suggested the government could set maximum allowable payments, rates that would be reasonable but not “life-altering.”
Eric Morrissette, a spokesman for Health Canada, said the government is aware of the society’s position, but is working now on clarifying what expenses can be paid to donors and surrogates, as well as other assisted-reproduction regulations.
The law was implemented after a Royal Commission and extensive debate in Parliament, the consensus being at the time that Canadians were opposed to the “commodification” of human sperm, eggs and wombs.
One bio-ethicist who studies the field said she’s still concerned about the impact of paying people to rent out their uterus, or give up sperm or eggs.
The latter involves the female donor taking powerful fertility drugs and undergoing a minor surgical procedure, noted Juliet Guichon, a University of Calgary professor.
“It sounds like the (society) would like to open the door to a sort of fee-for-service system, where money is promised and people line up to sell their eggs or sperm or gestational capacity,” she said. “People who find themselves in difficult financial circumstances will do this … for the purpose of defraying their debt or paying for university tuition.”
Guichon said she suspects the society’s real reason for recommending the change is to generate more business by expanding the pool of donors and surrogates.
Another bio-ethicist and expert in the area said she does support allowing payment – but for the sake of donors, surrogates and the resulting children, not parents.
It’s especially unfair to expect women to provide eggs or be surrogates for free when everyone from lawyers to clinic owners and brokers is profiting, said Vardit Ravitsky, a University of Montreal professor.
And the criminal ban has managed only to push transactions into a grey market, she said.
“The fact they’re being paid under the table makes them feel guilty, makes them feel part of something clandestine and hidden,” said Ravitsky. “They may not feel free to claim their rights and receive the health care they may need.”
The Assisted Human Reproduction Act that includes the ban has had a rocky history.
The Supreme Court struck down much of it in 2010 for being outside federal jurisdiction, prompting the government to close the agency set up to implement the law.
The act still made it a crime to buy the services of surrogates or donors, but Health Canada showed little inclination to enforce it, despite ample evidence the rules were violated routinely.
The only prosecution – of a fertility broker found guilty in 2013 of paying donors and surrogates – was instigated by the RCMP after a tip from U.S. authorities.