They're Here...Proposed Regulations re Reimbursing Surrogates, Egg Donors, Sperm Donors and Embryos under the Assisted Human Reproduction Act

The Assisted Human Reproduction Act (AHRA) came into force in 2004.  Section 6 of the AHRA prohibits paying a surrogate for her services, and section 7 of the AHRA prohibits purchasing ova, sperm or embryos from an egg donor, sperm donor or embryo donor or from a person acting on behalf of a donor.  Section 12, though, permits reimbursement to the donor or the surrogate, only for reasonable out of pocket expenses incurred, in accordance with the regulations.  However, from 2004 until now, we did not have regulations or even an inkling about what those regulations would look like if drafted...until today.

The Canadian Standards Association (CSA) provided a draft of the proposed regulations.  They are open for public comment until September 15, 2015. You can access them and comment here:

French: http://publicreview.csa.ca/Home/Details/1651

English: http://publicreview.csa.ca/Home/Details/1650


You will need to register and login.

I am certain over the next little while, I will have more to say about the substance of the proposed regulations.  At this point, though, I want to express my disappointment that this is the route taken to regulate fertility law in Canada.

The AHRA has been a failure from the beginning. Canada tried to take control on a federal level and in order to do so, needed to use the federal criminal power.  Huge swaths of the act were struck because they were found to be properly within the provincial, and not federal, jurisdiction.  

Continuing to regulate fertility treatments in Canada in the sphere of criminal law as opposed to health law by the provinces is a mistake, and I think it should be obvious by now.   

"Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians." (para 231, Supreme Court of Canada Reference re Assisted Human Reproduction Act).

Jurisdictions that over-criminalize commercialized third party reproduction leads to situations like Baby Gammy, and the current Australian story of intended parents abandoning one of a set of twins born through surrogacy in India because the parents decided they only wanted one child of a specific gender.  For third party reproduction to be ethical and safe for all parties, we need to make sure we can take care of our fertility needs in our own country.  Spending money adding teeth to legislation which criminalizes intended parents involved in surrogacy or gamete donation is wrong-headed. The same money should instead be spent supporting provincial regulation. Worry more about important things like donor registries, reporting OHSS levels and modernizing parentage laws, and worry less about whether or not a sperm donor is paid for a donation.

What a waste.  What a mistake.