End criminality for surrogacy and gamete donation

As lawyers, we have a duty to protect the interests of our clients.

Since December, a large coalition of lawyers has been organizing meetings with members of Parliament and senior bureaucrats, sharing our different perspectives on why they should decriminalize compensation for surrogacy and the donation of sperm and ova.

With 10 years of experience running one of Canada’s busiest fertility law practices representing hundreds of intended parents and surrogates each year, I have been sharing my professional opinion as an expert in my field. I have also been sharing my personal experience as a mother to two daughters created with the help of an egg donor and two surrogates.

The conversation we are having is not about commercializing surrogacy and the donation of genetic material, as some have characterized it.

We are talking about eliminating the fear of criminality that currently undermines everyone wanting to safely and fairly build families with donors and surrogates here in Canada.

I stood alongside MP Anthony Housefather in March when he first announced his plans to introduce a private member’s bill that would abolish the federal prohibitions against compensating gamete donors and surrogates.

When he tabled this bill in the House of Commons last month, I was also present. Sitting next to me were hopeful and intended parents, experienced surrogates and other allies from across the fertility industry, including medical professionals, consulting agency representatives and fellow fertility law practitioners.

I am grateful to live and work in a country where gamete donation and surrogacy are legal and where surrogates and donors may be reimbursed for reasonable expenses.

But ever since the Assisted Human Reproduction Act was enacted in 2004, Canadian parents have been at risk of facing 10 years in prison, a $500,000 fine or both for reimbursing donors or surrogates for any expense that might be deemed unreasonable or for providing them with any form of gift or payment.

It is outrageous that anyone trying to start a family could face harsher criminal penalties than if they were trafficking drugs or committing certain acts of terrorism.

For the sake of our clients, every one of us practising in this area of law should want to see this changed.

No Canadian should have to fear being treated as a criminal for building a family with a donor or surrogate. And my colleagues and I should not have to worry about whether we are aiding and abetting a crime if we tell a client that it’s OK to send flowers to her donor after an egg retrieval procedure or if we negotiate for a surrogate to receive reimbursement for winter tires to help her travel safely to and from medical appointments.

Since our laws prohibit Canadian donors and surrogates from receiving fair compensation for their time and effort, they remain few in number. As a result, many Canadian fertility specialists have encouraged their patients to travel south of the border to seek out American donors and surrogates. In doing so, they could be seen as promoting compensation for gamete donation and surrogacy, which means they could also be aiding and abetting a crime.

Hopeful parents, donors and surrogates are also weary about the legality of working with fertility consulting agencies, which can provide them with invaluable navigational services and support networks. Due to the prohibitions against accepting payment for matching donors or surrogates with intended parents, they often resort to the Internet to find a match for themselves, rather than utilizing the professional assistance of these agencies, out of fear that their consulting fees might be illegal.

While only one person has ever been prosecuted under the Assisted Human Reproduction Act, the ever­present possibility of an RCMP investigation hangs over everyone involved in the process of building families with donors and surrogates. Why should they suffer such undue stress during what should be a joyful journey?

In contrast, nothing in the federal Criminal Code prohibits Canadians from buying, selling or brokering human organs. 

These activities are governed solely by regulations at the provincial level, where governments are much more equipped to handle health matters. There is no good reason for treating surrogacy and gamete donation any differently.

That is why the Canadian Fertility and Andrology Society — the largest body representing fertility specialists within Canada’s legal and medical professions — and the Canadian Bar Association have been calling for an end to the federal prohibitions against compensation for surrogacy and gamete donation. They formally made this recommendation to Health Canada back in the fall of 2016, when the department invited input on its plans to update the Assisted Human Reproduction Act with regulations that were promised when the legislation was first introduced.

Adding clear regulations might help, but what is truly needed is the removal of the possible criminal penalties. They have created nothing but hardship for the victims of infertility, hopeful LGBTQ parents and other Canadians who need assistance building their families. While intended to protect donors and surrogates from exploitation, they have ironically complicated their ability to receive appropriate support from intended parents and fertility industry professionals due to the threat of criminality.

This is why I am advocating for our government to adopt Housefather’s bill along with experts from across the fertility industry who oppose the draconian nature of the current legislation. I hope we can count on support from all of Canada’s fertility law practitioners as we continue to call for this change in the interests of our clients.

Cindy Wasser is the principal lawyer at Hope Springs Fertility Law in Toronto, a firm she founded in 2008 after retiring from a 20-year career in criminal law.