In Canada, payment for eggs, sperm, in vitro embryos, and surrogacy is prohibited under the Assisted Human Reproduction Act of 2004. Offering or advertising such payments and brokering deals for eggs, sperm, embryos, and surrogacy are also prohibited. Punishment for breaking the law includes a fine of up to 500,000 Canadian dollars, imprisonment for up to 10 years, or both.
Despite the clear legal prohibitions and the serious legal penalties, the business of buying and selling reproductive tissues and services in Canada is robust, with thousands of dollars changing hands per transaction and no arrests being made. For example, it is reported that the price for eggs ranges from 3,000 to 7,000 Canadian dollars, while the total bill for contract pregnancy can be as much as 100,000 Canadian dollars.
But this may soon change. Finally, eight years after the law came into effect, the Royal Canadian Mounted Police has launched an investigation into the services provided by Canadian Fertility Consultants, a company that offers services to infertile couples. No specific details have been released, but some suspect this may have to do with last year’s FBI investigation into the “baby-selling” ring in the United States.
This police investigation puts Canadian fertility agencies on notice that alleged violations of the prohibitions on payments may be investigated. On this point, it is important to appreciate that while the law prohibits payment for sperm, eggs, in vitro embryos, or surrogacy, it allows “reimbursement of expenditures” provided they are made “in accordance with the regulations and a license.” The problem for law abiding Canadians is that in the eight years since the law came into effect, Health Canada has not published regulations detailing what types of reimbursement are permitted or how to obtain a license for making legitimate reimbursements.
One official reason given for the inordinate delay in producing these regulations has been a case before the Supreme Court of Canada challenging the constitutionality of the law. But the Supreme Court rendered its decision in December 2010 and upheld the section of the law governing reimbursement of receipted expenditures. Meanwhile, last month the federal government announced that Assisted Human Reproduction Canada, the agency responsible for “promoting compliance with and enforcing the Assisted Human Reproduction Act related to the prohibitions" as well as "implementing and administering a licensing framework for controlled activities," would cease operations effective March 31, 2013. Health Canada, which has failed to produce the regulations for the law to take effect, will now be responsible not only for writing the regulations, but also ensuring compliance and enforcement of the law – a most unfortunate outcome given past performance.
Canadian Fertility Consultants may or may not have obeyed the law prohibiting commercial surrogacy. This will only be clear once the investigation is completed and, if charges are warranted, a court process is concluded. What is immediately clear, however, is that Health Canada has not done its job and, as a result, has put women, couples, and children at risk. The legislated objectives of Assisted Human Reproduction Canada were “(a) to protect and promote the health and safety, and the human dignity and human rights, of Canadians, and (b) to foster the application of ethical principles in relation to assisted human reproduction.” The agency never had the tools to do its job because Health Canada never produced the regulations that were pivotal to the development and implementation of a federal oversight system similar to that which exists in the U.K. with the Human Fertilization and Embryology Authority.
The regulations governing reimbursement of expenditures need to be produced and these regulations – as well as the prohibitions against payment for surrogacy, the purchase of eggs and sperm, and the purchase or sale of embryos – need to be enforced. The next ethical challenge will be how best to encourage Canadians to support altruistic egg donation and altruistic surrogacy, and how best to dissuade Canadians from engaging in “reproductive travel” or “reproductive outsourcing” as a way to sidestep the law. There is something deeply troubling about seeking to protect Canadian women from exploitation, while turning a blind eye to those who would export this exploitation.
Françoise Baylis, PhD, is Professor and Canada Research Chair in Bioethics and Philosophy at Dalhousie University in Halifax.