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


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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.

Today, June 10, 2015, marks twelve years since Ontario became the first province in Canada to recognize same-sex marriages.  While Ontario led the way in 2003, it now lags behind many other provinces, including British Columbia, Alberta and soon Manitoba, in providing legal security regarding parentage in those same families. Ontario has failed to update its legislation to recognize the parentage of children conceived through the use of assisted reproductive technologies in the LGBT community (and sometimes in hetero-normative families, too).  

Lesbian women (or single women, regardless of their sexual orientation) are perhaps the most vulnerable parents in Ontario, especially those who choose to use a known sperm donor.  There are so many good reasons to use an altruistic, known sperm donor.  Where a heterosexual couple uses the help of a known sperm donor to conceive, the mother is legally protected and the father has the benefit of a presumption of paternity by virtue of his relationship to the mother.  However, where a lesbian couple uses a known sperm donor, the carrying mother is legally the mother, but the non-carrying mother has no  presumption of parentage and in fact cannot legally be registered on a birth certificate as a parent without taking further legal steps.  And, the sperm donor, by virtue of his genetic connection to the child, may be legally the father of the child (unless further steps are taken to sever any legal rights or obligations the donor may have. In contrast, no such further steps are generally necessary in a heterosexual family using the known sperm donation).  

If Ontario wants to make the use of altruistic known donors an attractive option, and there are many policy reasons that it ought to, then it needs to change its legislation to clarify that a donor has no rights or obligations to a child only by virtue of a genetic connection and to allow both moms - carrying and non-carrying - to be registered as the child's parents from birth.  Although Ontario had it right in 2003, we are failing in 2015 - let's get back at the forefront of supporting the LGBT community.