Alison Motluk is a Toronto freelance journalist with a special interest in assisted reproduction.
Recently, the Prime Minister suggested it might be time to revisit our law on assisted reproduction. He was responding to the news that Liberal MP Anthony Housefather planned to introduce a private member’s bill amending parts of the law that made it a criminal offence to pay people to act as surrogates, egg donors or sperm donors.
They are right that the Assisted Human Reproduction Act, which received royal assent in 2004, is a bit outdated. Much of it comes from a time before it was common for gay couples to have children, for lesbians to use anonymous sperm donors or for single women or men to create families on their own. The idea that paying for someone’s willing help in this could send a parent to prison doesn’t feel right.
But before we start dismantling the prohibitions, it’s important to remind ourselves what led us to those prohibitions: concerns about health and well-being.
I interviewed several of the MPs who helped draft the law and I can tell you that was foremost in their minds. Looking back, yes, some of them may have focused too much on the pull of money, others not enough on comprehensive regulation. But what they got right was that people drawn into this economy – even intelligent, autonomous, financially stable people – could be vulnerable and in need of protection.
So far, the discussion has mostly centred on the difficulties faced by people building their families. Much less has been said about the people who will be asked to help – or the people who will be created.
I’m no fan of the 2004 law as we’ve experienced it. But it seems to me that the best parts of the law never came to fruition. There were supposed to be regulations for surrogacy, egg donation and sperm donation. That never happened.
There was supposed to be a national personal health registry, to identify the health and safety risks of assisted reproduction and to stay on top of ethical and human-rights concerns. Never happened. There was supposed to be an agency to enforce the law, Assisted Human Reproduction Canada, but although an agency by that name briefly existed, it fell well short of all the hopes pinned to it before being quietly killed off.
And as for all the clamour over criminal prohibitions, there has only been one conviction under the act. The penalty in that case was just $60,000. Although the fears are genuine, the fact is no parent has ever been charged for paying a surrogate or an egg donor, even though it has been a common occurrence in this country. No lawyer or doctor has ever been charged for acting as an intermediary. And no agency has ever been charged for taking fees to arrange the services of a surrogate – prohibited by the act – despite reports of such transactions.
So if we do tear down this law – and maybe we ought to – what should we keep in mind as we decide how to build something better in its place?
Regarding sperm, maybe we should think about the 11 offspring who say they were conceived with the sperm of their mothers’ fertility doctor. Or we could think about the thousands of donor-conceived offspring, who, unlike many adoptees, have no right to know anything about their biological fathers. Or the families who ordered the sperm of a PhD candidate in neural engineering but discovered it was actually from a burglar with schizophrenia. All that to say, along with concerns about a shortage, we might want to give some thought to a few other sperm issues, too.
Regarding eggs, we could think about the 23-year-old American woman who flew up to donate hers at a Toronto clinic, had 45 retrieved, then flew home – and had a stroke. Or the others – we don’t know how many because we don’t keep track – who need to be hospitalized after egg donation.
Regarding surrogates, we could think about the woman who, as per her contract, had four embryos transferred into her uterus. Or the woman forced to leave her own children and stay with the intended parents for a night because her husband had been caught smoking. Or the woman who learned, just after she gave birth to a couple’s baby, that they secretly had another surrogate on the go at the same time.
The Prime Minister says the government will listen to all sides. I hope it does. Many surrogates, for instance, are currently bound by strict confidentiality clauses and would probably welcome the opportunity to tell their stories with the benefit of parliamentary privilege. So yes, let’s find out how things have been going. After we know a lot more, we’ll be in a better position to replace this law with something that actually works – for the people who want to be parents as well as for the people who want to help them.