Breaking the Law
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In July 2017, more than 13 years after the came into force, the federal government has published a consultation document titled [PDF - 527 KB] as part of its initiative to finally develop regulations to support the Act.聽 The consultation document includes proposed policy directions for Section 10 (on the safety of donor sperm and ova), Section 12 (on reimbursement of receipted expenditures) and Sections 45-58 (on administration and enforcement) of the Assisted Human Reproduction Act. Several members of NTE Impact Ethics participated in the public consultation 鈥� Fran莽oise Baylis (with ) and Mark McLeod. Read submissions by Baylis and Cattapan [PDF - 1713 KB] and by McLeod [PDF - 403 KB]. Other colleagues (interested in public health, women's health and ethics) responded, including . Read her response in French [PDF - 40 KB] and the English translation [PDF - 39 KB].
Overview
It is illegal under the Assisted Human Reproduction Act to "pay consideration to a female person to be a surrogate mother," "to accept consideration for arranging the services of a surrogate mother" and "to pay consideration to another person to arrange for the services of a surrogate mother" (). It is anticipated that reimbursement for receipted expenditures incurred by a surrogate mother and for loss of work-related income will be legal, provided that the reimbursements are made in accordance with the regulations (). As yet, however, there are no regulations with respect to reimbursement; moreover, section 12 of the legislation is not yet in force.
It is also illegal in Canada聽聽to pay for sperm or eggs from a "donor or a person acting on behalf of a donor" (). It is similarly anticipated that reimbursement for receipted expenditures incurred by a donor will be legal, provided that "the reimbursement is made in accordance with the regulations" (). As yet, however, there are no regulations with respect to reimbursement; moreover, section 12 of the legislation is not yet in force.
On December 13, 2013, the first prosecution under the AHR Act resulted in the conviction of Leia Picard, a Canadian fertility agency owner, for purchasing eggs, paying surrogates and taking money to arrange surrogacies (R v. Picard and Canadian Fertility Consulting Ltd). Curiously, the [PDF - 3.2 MB] references "Health Canada policy" regarding the permissible reimbursement of expenditures to donors and surrogates, even though there are no regulations and section 12 of the AHR Act is not in force. On December 16, 2013, Jocelyn Downie and Fran莽oise Baylis sent a [PDF - 104 KB] about this so-called "policy". [PDF - 76 KB] referenced two pages on its website that offer vague examples of permissible expenditures.
This response confirms a failure to follow established legal mechanisms for creating regulations. Of note, prior to the correspondence about the case involving Leia Picard, and had [PDF - 291 KB] in July 2013 and [PDF - 315 KB] requesting clarification on Health Canada's position on the reported trade in reproductive materials and the transnational trade in human eggs, specifically asking why the law is not being enforced. Health Canada responded to the July 2013 letter in [PDF - 80 KB] and to the October 2013 letter in [PDF - 76 KB].
According to Health Canada, the AHR Act
鈥oes not prohibit the purchase of sperm or eggs in Canada from persons (individual or corporate) other than donors, provided the person is not acting on behalf of the donor. Health Canada interprets "acting on behalf of the donor" to mean acting as an agent or representative for the donor. It is therefore the Department鈥檚 interpretation that it is not illegal to purchase ova from an egg bank, provided that the egg bank is not acting on behalf of the donor. (emphasis added)
Additionally,
It is Health Canada鈥檚 interpretation that donors may currently be reimbursed for their actual expenditures directly related to their donation. Reimbursement must not involve financial or other gain, normally occurs after receipts are provided, and may not be paid in advance of anticipated expenses. (emphasis added)
The many responses from Health Canada are disappointing insofar as Downie and Baylis have been asking about regulations, and Health Canada has been offering interpretations.
This case emphasizes the importance of the following questions, which await an answer from Health Canada.
- On what basis does Health Canada allow any reimbursement of "expenditures directly related to their donation"? Section12 is not yet in force, therefore only section 7 applies and therefore no payments are possible (section 12 creates an exception to section 7).
- If Health Canada is acting as if section 12 is in force, then Health Canada must nevertheless conclude that no reimbursement is possible as no regulations are in force. The Act states that "No person shall, except in accordance with the regulations, (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum." To repeat, there are no regulations for section 12, therefore it is not possible to reimburse a donor "in accordance with the regulations". On what basis does Health Canada conclude that 鈥渄onors may currently be reimbursed for their actual expenditures directly related to their donation鈥�?
- On what basis does Health Canada conclude that "reimbursement 鈥�, normally occurs after receipts are required, and may not be paid in advance of anticipated expenses"? (emphasis added) Again, section 12 is not yet in force. Further, if acting as if section 12 is in force, then Health Canada would have to conclude that a receipt is absolutely required and not accept the lesser standard of "normally occurs".
In 2015, the Canadian Standards Association聽(a private, not-for-profit company) was invited to develop standards for potential reimbursements to gamete donors, embryo donors and surrogates. These standards would be an annex to an existing standard聽. This process included a public consultation that took place over three months (ending September 15, 2015).聽聽[PDF - 154 KB] participated in the public consultation, including members of NTE Impact Ethics 鈥撀�Fran莽oise Baylis听补苍诲听Alana Cattapan.
Then, in October 2016, the federal government announced plans to introduce [PDF - 186 KB]. A [PDF - 214 KB]. was published and Canadians were invited to provide comments. Several members of NTE Impact Ethics participated in the public consultation 鈥� Mark McLeod, Alana Cattapan, and Fran莽oise Baylis and Jocelyn Downie. You can read their submissions, [PDF - 325 KB], [PDF - 361 KB], and [PDF - 208 KB].
Updated as of August 2017.