Assisted Human Reproduction Act
Bill to Amend--Second Reading--Debate Continued
March 12, 2020
Moved second reading of Bill S-216, An Act to amend the Assisted Human Reproduction Act.
She said: Honourable senators, I rise today as the sponsor of Bill S-216, An Act to amend the Assisted Human Reproduction Act. This bill is controversial to those who view assisted human reproduction as a form of commercialization of women and commodification of children. Canadians are divided on the issue of assisted human reproduction, as I am sure honourable senators are.
In the interest of all those concerned by assisted human reproduction, including women, children, infertile couples, members of the LGBTQ2+ community and members of the medical profession, and also for the sake of this discussion, I invite you, honourable senators, to undertake the study of Bill S-216 in a spirit of openness, setting aside ideologies, opinions, preconceived notions and prejudices that might hinder a thoughtful and objective debate on such an important issue.
Before getting to the heart of the matter, I would like to note that for the purposes of this speech I will be using the terms “surrogacy,” and “surrogate motherhood” interchangeably. I mention this to spare you the arguments over semantics.
In recent years, assisted human reproduction has been the subject of many reports and studies by investigative journalists and university researchers. There are many articles and reports that cover all aspects of assisted human reproduction.
On March 2, the CBC released the results of another investigation that first exposed the questionable practices of certain surrogacy agencies with respect to eligible expenses. In fact, these agencies encouraged surrogates to submit receipts in order to systematically reach the maximum refundable amounts under the agreements with intended parents.
Given these practices, intended parents are afraid of paying expenses that are ineligible under the Assisted Human Reproduction Act, which is a criminal offence punishable by 10 years in prison and a fine of $500,000.
The debate on surrogacy generally brings into focus the vulnerability of surrogates. The results of this first part of the CBC investigation revealed that intended parents can also be vulnerable and that a legal system that is primarily a criminal law system prevents us from having an open discussion about optimizing the regulations for assisted human reproduction in Canada.
The second part of the CBC investigation looked into how vulnerable surrogate mothers are. The investigation revealed that health care professionals did not always provide relevant, up-to-date information to potential surrogate mothers about the risks of pregnancy. This raises questions about whether these women are in a position to provide informed consent. The investigation looked at the specific case of a woman who had not been informed of the risks of having consecutive pregnancies without an adequate recovery period.
Dr. John Kingdom, a medical doctor and professor at the University of Toronto, condemned Canada’s lack of regulations on a mandatory waiting period between surrogates’ pregnancies.
I want to point out that, in the case in question, the surrogate had not received remuneration, so the surrogacy was completely legal in Canada. Dr. John Kingdom exposed the false dichotomy associated with the vulnerability of potential surrogate mothers who receive compensation and those who become surrogates for altruistic reasons. He said, and I quote:
I think we should recognize that surrogates are altruistic, kind people who are at risk of power imbalances.
Although this dichotomy was the main justification for Canadian legislators to criminalize commercial surrogacy, there is no empirical evidence to back up that dichotomy. Recent studies have shown quite the opposite in the average profile of a surrogate in the United States or in other in Western countries.
In 2015, Maneesha Deckha, professor and Lansdowne chair in law at the University of Victoria, published an article in the McGill Law Journal. In it she refers to U.S. research and the profile of surrogate mothers in Western countries by quoting Erin Nelson, professor of tort law. The article reads as follows:
. . . contrary to feminist arguments made in the early days of ARTs, the women who act as surrogates are not poor, uneducated women of color who comprise some sort of reproductive ‘underclass’ to serve the needs of wealthy white women.
The authors agree that Canadian feminists’ concerns about surrogate mothers being exploited by people in wealthy countries have been resolved by empirical evidence.
According to a 2016 publication by the Conseil du statut de la femme du Québec, the CSF, commercial surrogacy is a violation of human dignity. The CSF took a firm stance against commercial surrogacy and vaguely justified a more flexible approach to altruistic surrogacy. The CSF stated the following:
It is clear that commercial surrogacy violates human dignity because it commodifies women’s bodies and human life. Altruistic surrogacy may also undermine women’s dignity, which is why respect for this principle must be evaluated in the context of specific situations.
Whether one agrees with this position or not, nobody who cares about human dignity at all would consider criminalization to be a solution. Karen Busby, a professor of law and director of the Centre for Human Rights Research at the University of Manitoba, agrees. She said, and I quote:
We should re-open the debate about the ethics of commercial surrogacy. The safety, security and well-being of surrogate mothers, the children they bear and the intended parents may be better protected through regulatory regimes than criminal prohibitions.
We must remember that just because a surrogate mother or gamete donor receives payment does not mean they aren’t also motivated by altruism to carry another person’s child or undergo invasive medical procedures to have gametes retrieved. As we examine this argument, we need to challenge this presumption, which is one of the bases for criminalizing compensation for surrogate mothers and gamete donors.
Next, this dichotomy also represents the glorification of female altruism, in which lofty attributes like empathy, generosity and self-sacrifice reinforce gender-based stereotypes and barriers to gender equality. It would be naive to think that reinforcing this stereotype has no impact on people’s ability to recognize systemic gender discrimination in Canadian society.
In all cases, whether a woman is carrying a child for another person for altruistic or commercial reasons, the way to protect women and intending parents is through proper regulation. To achieve this goal, all of the parties concerned must be able to join in the public debate and turn to the courts when necessary, without fear of penalty or jail time.
What we should remember from the CBC report is that criminalization fosters a climate of fear and silence, which stifles discussion and increases the risk that vulnerable people will be exploited, whether we are talking about surrogate mothers, intending parents, gamete donors, gamete recipients or children.
Sarah Cohen, a lawyer and professor at Osgoode Hall Law School and the President of Fertility Matters Canada, believes that Canada should decriminalize payment for surrogate mothers so that parents can feel comfortable speaking out against bad practices without fear of dire legal consequences. She states that one of the reasons to decriminalize the compensation of surrogates is so that intended parents and surrogates feel empowered and safe to speak out when they are being wronged without fear of criminal penalties to them or to the other parties. The parents are scared that they may have broken the law and so will not seek the assistance of a court of law when being wronged, and the surrogates don’t want to see the intended parents go to jail, even if the parents wronged them. This leaves intended parents and surrogates in the lurch, trying to navigate a grey zone without the benefit of the usual judicial system to support them.
The CBC’s investigative work and these personal stories shed light on the unintended consequences inherent in criminalizing compensation to surrogates and force us, as legislators, to ask ourselves some serious questions about the relevance of the current legal system from a pragmatic rather than ideological point of view.
My speech aims to launch an informed debate by presenting you with various perspectives that have shaped the public debate, as well as the results of my own research and reflections on the subject of decriminalization. After thoroughly and carefully studying and analyzing these issues, I have concluded that decriminalization is the best approach to serve the interests of all Canadians who use alternative reproductive methods. I would like to emphasize right away that decriminalizing compensation to surrogates is a way for women to reaffirm their ability to think for themselves and make decisions regarding their own bodies while protecting vulnerable people, including women who may not have the mental capacity to give consent and those who are under 21 years of age.
This feminist approach dissociates itself from a paternalistic feminism that denies women their ability to decide for themselves based on certain ideals or concerns, for example, the ethical issues raised by the commercial use of reproductive organs or the alleged risk that vulnerable women will be exploited when they receive compensation for being surrogate mothers, as though they would somehow be less likely to be exploited if they did it for free.
In short, the current law and the schools of thought that shaped it are full of contradictions. In her article entitled “A comparison of surrogacy laws of the U.S. to other countries: Should there be a uniform federal law permitting commercial surrogacy?”, Victoria Guzman sums up the position of opponents to this paternalistic feminism:
. . . such a viewpoint is based on the paternalistic assumption that women need to be saved from themselves and minimizes the autonomy in a surrogate mother’s reproductive choices. Furthermore . . . not compensating the surrogate mother devalues the work she has done.
Some people also believe that commercial surrogacy is advantageous for women because it offers them a significant source of income for work that is valued by society and is free from male competition.
The issue of assisted reproduction in Canada requires careful thought. In trying to understand the rationale behind the current legislation, I asked myself the following questions:
Why is a parent who pays a surrogate mother, an intermediary who arranges payment, liable to 10 years in prison and a fine of $500,000? Why is commercial surrogacy criminal, but not surrogacy for altruistic purposes? Why is there this arbitrary dichotomy? Why is a woman at less risk of being exploited if she performs a service free of charge rather than being compensated fairly for that service? Why does the legal system encourage Canadians to travel to the southern hemisphere to find poor, racialized surrogates who have no real protection from abuse and exploitation rather than provide access here in Canada within a legal and medical framework that is safer for women? Why are doctors and agencies working in the field of assisted reproduction allowed to profit from this industry, but it is against the law for surrogate mothers and gamete donors to be fairly compensated?
All the honour and credit for the ingenuity and boldness of Bill S-216 go to MP Anthony Housefather, who, senators will recall, introduced Bill C-404 in the other place in the 42nd Parliament. I chose to sponsor this bill in the Senate because this is a subject that merits in-depth reflection and we, in this chamber, are in a position to give it the attention and scrutiny required. That will lead to a much more healthy and balanced legal framework for governing assisted human reproduction in Canada. The current framework facilitates the exploitation of vulnerable and racialized women in other parts of the world. It exacerbates the inequality between fertile heterosexual couples and anyone else who wants to have a child but is unable to do so, particularly LGBTQ2+ couples, infertile couples and single people. The current framework also undermines the freedom of women and robs them of the mental ability to make decisions about their body in an arbitrary context, that of surrogacy for compensation.
The next part of my speech will be on the state of the law on assisted human reproduction in Canada at the federal level and the proposed changes in Bill S-216. I will go over the rationale for criminalization by giving an overview of the history of the debates and legislation on human reproduction in Canada. I will also review the jurisdictional issues that characterize assisted reproduction regulations in Canada.
Canadian law on surrogacy and gamete donation is governed largely by the Assisted Human Reproduction Act, which prohibits certain activities but authorizes others. For the most part, the practices that are permitted are regulated by the provinces, pursuant to their jurisdiction over health and family law.
There is a wide disparity in jurisprudence and regulations across the provinces and territories. For example, in Ontario, with respect to parentage, with the recent reforms of the Children’s Law Reform Amendment Act, donors and surrogates are not the presumed parents of the child, whereas in Quebec the woman who gives birth to the child is presumed to be the child’s mother, in accordance to the old legal saying mater semper certa est. Furthermore, in Quebec, an agreement to carry a child for another person is null under section 541 of the Civil Code. In most provinces, the surrogate is recognized as the real mother of the child, which forces the parents to undertake a formal adoption process. Federally, the Assisted Human Reproduction Act provides for the following constraints: no person shall pay a woman to be a surrogate; no person shall accept consideration for arranging for the services of a surrogate mother; no person shall pay consideration to another person to arrange for the services of a surrogate mother. Note that advertising and offering to pay consideration are also prohibited.
The only payment a surrogate mother can receive is for expenses directly related to the surrogacy. These expenses are listed in the law and in the upcoming regulation. The same will be true for gamete donors.
The regulations covering eligible expenses will come into force in June 2020, 16 years after the 2004 statute. So far, the lack of clear regulations concerning eligible expenses has meant that people who use alternative methods of assisted reproduction are often unsure and afraid that an ineligible expense may be seen as an illegal payment. This encourages people who can afford it to travel to countries like India and Mexico, where they access the services of a surrogate mother in a less restrictive legal framework.
This practice leads to a range of problems, including the exploitation of poor and racialized women in other countries and difficulty accessing gamete and surrogacy services in Canada. In theory, you could say that Canada’s legislative approach is hypocritical, because we are ignoring the exploitation of women in other countries out of fear of exploiting women in Canada. In her article, Maneesha Deckha cites the work of Kristin Lozanski to underscore this legislative hypocrisy:
. . . AHRA asserts that commercial surrogacy is immoral because of . . . hefty repercussions on transgressors of this moral code. Yet, where this exploitation occurs abroad, Canada is unconcerned and will actually help Canadians bring home babies born from commercial surrogacy. . . .
. . . this undermines the anti-commodification and gender equality principles underlying the AHRA.
The Assisted Human Reproduction Act places the following restriction on buying and selling gametes: No person shall purchase or offer to purchase sperm or ova from a donor or a person acting on behalf of a donor. No person shall purchase or offer to purchase an in vitro embryo. No person shall purchase or offer to purchase a human cell or gene with the intention of using the gene or cell to create a human being.
“Purchase” or “sell” includes “to acquire or dispose of in exchange for property or services.” Advertisement is also prohibited. As such, it is against the law to pay a donor. Ironically, Canada allows gametes to be imported from other countries, even if the donor there is paid. That explains why about 90% of sperm donations in Canada are from the United States and only 5% to 10% are from Canadian donors. By supporting imports, the government is relinquishing oversight of the legal framework governing the collection of most of the gametes found in Canada’s sperm and ova banks.
Section 60 of the Assisted Human Reproduction Act covers offences related to acts prohibited in section 6, payment for surrogacy, and section 7, purchase of gametes.
Individuals may be fined up to $500,000 and imprisoned for up to 10 years.
Let’s now turn to the purpose of Bill S-216 and the problems it would solve if passed. On the one hand, by legalizing payment for human reproductive material, Bill S-216 would increase the supply of gametes and make it easier for Canadians who can’t get pregnant — or shouldn’t because it’s too risky — to get help from surrogate mothers.
In an article from 2019, Anne-Isabelle Cloutier from McGill University explained this argument, which is strongly supported by the academic literature. She says:
The purported lack of donors and surrogates is attributed to the absence of economic incentives and the existence of a grey market that casts a shadow of legal uncertainty over the whole process. This “aura of illegality” . . . deters some Canadians from acting as donors or surrogates and causes intending parents to fear being criminally sanctioned if the reimbursement they pay is deemed unrelated or unreasonable. Decriminalization of payment of gamete donors and surrogates, it is argued, would solve both problems and thus increase the number of Canadian donors and surrogates . . . .
Improving access to alternative methods of reproduction supports equality between couples who have no difficulty conceiving and other people, such as infertile couples, same-sex couples and single people. In addition, by making it easier to use a surrogate mother in Canada, this bill would reduce Canadians’ exploitation of women in other countries. As I mentioned earlier, many Canadians travel to countries where surrogate mothers face an increased and pervasive risk of exploitation. Maneesha Deckha clearly explained the logic of the argument in the article I cited earlier:
Feminists who are skeptical of the empirical findings regarding the lack of surrogate exploitation may still concede a critical difference between domestic and transnational surrogacy if they consider the respective underlying health and economic regulatory contexts in which surrogacy is practised. Specifically, parentage laws and public health care standards are in place in Canada that do not currently exist in India, which would prevent exploitative working and health conditions for Canadian women who might engage in paid surrogacy work if legalized.
Guzman, in an article from 2016, makes a similar argument:
While the situation in India may be called exploitation by some, the same cannot be said of surrogacy in the United States, where a surrogate is generally “married, between twenty-one and thirty-seven years old, a high school graduate, a stay-at-home mother, and dependent on her husband’s income.” Some research suggests American surrogates enjoy their experience as a surrogate, feel as though they are doing something beneficial, use it as an extra source of income rather than their sole income, and are rarely impoverished.
Bill S-216 would also enable the provinces and the government to appropriately regulate the use of surrogate mothers and gamete donation. Decriminalizing would open the door for the provinces to regulate these practices and protect people who use alternative means of procreation and those who facilitate their use. The legal principle that ignorance of the law excuses no one means that not knowing the law is not a defence for committing an illegal act. How can the Canadian government expect the general public to distinguish what is prohibited from what is not under the current regime? Intending parents, agencies, lawyers, doctors, surrogate mothers, gamete donors and gamete recipients all agree that the legal uncertainty and inherent contradiction of this regime are highly problematic.
Consider, for example, the issue of expense reimbursement and the finding of the CBC investigation. Legal uncertainty does no one any favours and increases the risk that vulnerable people will be exploited, owing to the unequal power relations involved in using alternative means of procreation.
Bill S-216 would address the many contradictions and inconsistencies in the current legal framework by recognizing that women have the ability to make decisions about their own bodies.
A single mother who has a hard time meeting her family’s needs could, completely rationally, decide that she would rather become a surrogate mother than take on two minimum-wage jobs and work an average of 80 hours a week to make ends meet.
The argument also works for gamete donation. Who are we, as women or men, to arbitrarily prohibit a woman or man to make this kind of decision? In my mind, this paternalistic approach is inconsistent with the values of most Canadians.
The proposed amendments in Bill S-216 primarily deal with surrogacy, section 6, and the donation of sperm or ova, section 7. The bill would essentially decriminalize the act of paying compensation for surrogacy or a sperm or ova donation by repealing the provisions that prohibit these acts.
Furthermore, the bill contains restrictions on who can become a sperm or ova donor. A donor must be over the age of 18, be capable of consenting to the donation and not be coerced by a third party to donate.
With regard to gestational surrogacy, the bill also sets out restrictions as to who can become a surrogate mother. The women must be at least 21 years of age, capable of consenting to the donation and not coerced by a third party to donate.
The bill also eliminates the ban on reimbursement for expenses incurred by surrogate mothers under certain conditions. Rather than generally prohibiting the reimbursement of expenses other than those set out in a regulation that, let’s be clear, has not even been implemented yet, the bill authorizes general compensation and simplifies the process.
In summary, the problems related to the uncertainty regarding reimbursable expenses come from the fact that an expense that is deemed non refundable could be seen as a form of payment, which makes the reimbursement of such an expense ipso facto criminal for both the surrogate mother and the parents using her services.
Broadly decriminalizing payment in turn removes the burden of extremely strict regulation of expense reimbursement. The current legal framework can, in theory, expose someone who simply makes an unintentional mistake to serious penalties. The new legal framework would enable parties to agree on the conditions for reimbursing expenses, including the type of expenses that can be reimbursed, the maximum amount that can be reimbursed and the supporting evidence required. Expense reimbursement would be a matter of contract law rather than criminal law. In addition, unlike Bill C-404 from the Forty-second Parliament, Bill S-216 would come into force 180 days after Royal Assent. This would give the federal government and provincial legislatures a reasonable amount of time to exercise their regulatory powers, if necessary.
I would now like to review the history of this issue in order to break down the reasons that paying for assisted reproduction was criminalized.
In 1989, the federal government established the Royal Commission on New Reproductive Technologies, also known as the Baird Commission, to study assisted reproduction. In its final report Proceed with Care, released in 1993, the Baird Commission expressed concern with some assisted reproduction practises and urged the government to pass legislation addressing this issue. That same year, Quebec’s Minister of Justice said that using a surrogate mother is contrary to public order.
In 1995, the Minister of Health announced a voluntary moratorium on practices such as human cloning and payments to surrogate mothers. Finally, in 2004, the federal government passed the Assisted Human Reproduction Act, which was based on the Baird Commission report in consultations with the provinces, territories and interest groups.
Criminalization was the result of a combination of factors. It originated in ideologies that were common in Canadian societies in the 1990s and the 2000s, including some schools of feminist thought and traditional beliefs that uphold the conventional view of procreation and the family.
The excitement around the merits of the legislation and attempts to legitimize the position adopted when the Assisted Human Reproduction Act was passed in 2004 were exaggerated. Author Anne-Isabelle Cloutier pointed out that several authors, including Dave Snow, are of the opinion that the creators of the Assisted Human Reproduction Act and its supporters were the only ones claiming that the law had strong social licence when it was passed. In reality, there was no evidence to support such a claim, since an opinion poll conducted in 2002 showed that 55% of Canadians were in favour of authorizing reimbursement for assisted reproduction. Many authors agree. Maneesha Deckha said, and I quote:
. . . AHRA‘s criminal prohibitions against commodification rest on shaky morality principles that have never received widespread public approval and do not reflect current Canadian social mores. . . .
This situation was compounded by the legislative urgency felt in the wake of advanced assisted human reproduction technologies. Human cloning was imminent and the government needed to act quickly. Accordingly, the government essentially copied the recommendations of the 1993 report into its 2004 legislation.
I believe that in light of the recent academic literature, testimony from stakeholders and empirical evidence from research into assisted reproduction, some of the Baird Commission’s recommendations are out of date and out of touch with reality, particularly those relating to the commercialization of surrogate motherhood and gamete donation.
The fears that led to the prohibition of these activities proved unfounded. This finding is consistent without the academic literature which is based on empirical evidence.
In addition, social norms and values were different. Canadians had a more traditional conception of the family and procreation at the time. Same-sex marriage was not yet legal, which means that no one knew how many people would make use of surrogate mothers or gamete donation in Canada. In short, it was a different time.
The federal government justifies the criminalization of commercial surrogacy on an ideological rather than empirical basis, which is fundamentally contrary to the way the current government intends to legislate.
In the provinces, we can see the same phenomenon with regard to parentage. Marie-France Bureau, an associate professor at the Faculty of Law at the Université de Sherbrooke, and Édith Guilhermont, a postdoctoral researcher, concluded in an article entitled “Maternité, gestation et liberté : Réflexion sur la prohibition de la gestation pour autrui en droit québécois” or maternity, gestation and freedom: thoughts on the prohibition of surrogacy in Quebec law, published in 2010 in the McGill Journal of Law and Health, that the primary reason the legislator criminalized commercial surrogacy was ideological in nature. The report made the following conclusion:
The fears expressed over the past two decades or so and the arguments made against surrogate motherhood do not seem to be supported by empirical studies of the practice in the West and are rather related to the desire to maintain a certain representation of motherhood.
Quebec jurists have long subscribed to a concept of motherhood holding that the woman who gives birth to the child is naturally the child’s mother.
At a time when assisted reproductive technology has advanced considerably and given that many people are relying on third parties to pursue their parenting plans, the certainties surrounding parentage are being shaken. However, rather than rethink the concepts of maternity and parentage in light of this reality, Quebec lawmakers, like those in other jurisdictions such as France, continue to prohibit gestational surrogacy, invalidate agreements designed to organize this practice and persist in automatically linking maternity to the womb.
As long as the federal government fails to show leadership in regulatory matters, and by maintaining a prohibition under criminal law, it is sending a message to the provinces that it is acceptable to legislate based on ideological concepts rather than empirical evidence. In 2020, most Canadians expect greater wisdom from their legislators. The time has come to conduct a study intended to ensure consistency between the text of the legislation and its objective.
The major principles set out in section 2 of the Assisted Human Reproduction Act are as follows: the protection and promotion of human health, safety, dignity and rights; the health and well-being of women; free and informed consent; and the premise that persons who seek to undergo assisted reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status.
For all the reasons I mentioned in my speech, I think that the criminalization of commercial surrogacy and gamete donation is not consistent with these principles and prevents us from adopting appropriate regulations. If we deconstruct the speeches made in favour of this criminalization, we can clearly see the inconsistency and contradictions between these principles and the reality on the ground.
I now want to talk about matters of jurisdiction. Bill S-216 does not create any constitutional problems, since it would simply eliminate the prohibitions of a criminal nature. It would be very dangerous to propose a legal framework that would go beyond simple decriminalization. As jurisprudence has shown, it is risky, constitutionally, to propose comprehensive national legislation on assisted human reproduction.
The federal government’s ability to regulate reproductive technologies is clearly limited. Canadian provinces have jurisdiction over family law, parentage transfer, birth registration, adoption and health. The federal government has exclusive jurisdiction over criminal law.
In 2010, in the reference case on assisted human reproduction, the Supreme Court struck down much of the Assisted Human Reproduction Act finding the federal government had exceeded its legislative authority by regulating matters such as in vitro fertilization in the issuance of licences for clinics. However, the court did not strike down the provisions criminalizing certain activities, including the offences for contravening section 6, which is surrogacy, and section 7, which is gamete donation, as they fall more clearly within the federal jurisdiction over criminal law.
Since Bill S-216 would decriminalize some practices, the provinces will need to legislate and regulate certain matters that relate to paying surrogate mothers and gamete donors. In the article, the Assisted Reproduction Policy in Federal State: What Canada Should Learn from Australia, David Snow explains how and why Canada should draw on the Australian model of cooperative federalism to let the provinces pass assisted reproduction legislation without creating a chaotic legislative regime. He states the following:
Given the Supreme Court ruling . . . national regulation in non-criminal areas of reproduction technology policy is no longer an option in Canada, meaning that those who desire harmonization have no choice but to seek inspiration from something like the Australian model. . . .
Snow argues that decriminalization, acting as a decentralizing factor, does not undermine consistency or basic principles upheld by every province. In Canada, we can imagine that every province will find some common grounds and certain basic principles, such as the importance of stopping the exploitation of women, the protection of patient health and safety, the importance of a free and informed consent, and a clear legal framework.
He cites the example of the state of Victoria, Australia, whose regulations were used as a model by the country’s other states.
In Canada, Ontario leads the way in regulating assisted human reproduction. The provinces are positioned to implement changes and use good consultation practices to draft appropriate regulations.
For areas outside federal jurisdiction, there are several ways to ensure some consistency and uniformity across provincial regulations. For example, the government can issue non-binding guidelines that outline best practices for assisted human reproduction.
In addition, regulations governing health professionals already provide a regulatory framework to patients who use alternative reproduction methods with respect to surrogates, the donation of gametes for altruistic purposes and patients’ free and informed consent. Consequently, the decriminalization of the commercial aspect of these practices would not be part of a regulatory framework devoid of guidelines.
We should note that the federal government retains its regulatory powers with respect to anything that is criminal under the act.
The most important thing to note about the 2010 reference is that assisted human reproduction touches on both federal and provincial jurisdictions and that, generally speaking, when certain activities are permitted by the federal government, are decriminalized and affect health or parentage issues, the required regulations will be primarily provincial. The harmonization of regulations is possible and realistic in a context of cooperative federalism, as is the case in Australia, for example, and as we see in Canada in areas of jurisdiction that are a priori provincial.
Bill S-216 therefore does not pose a problem with regard to shared jurisdictions and is consistent with the Supreme Court’s restrictive interpretation of the federal government’s jurisdiction over criminal matters in the December 2010 reference. An overly ambitious bill that would centralize the regulations by way of a federal law would most likely be deemed unconstitutional under the December 2010 reference and the division of powers set out in the Constitutional Act of 1867.
In this speech, I sought to answer the following question: Is it relevant to maintain the prohibition on commercial surrogacy and gamete donation?
What is the rationale or absence thereof beyond the decision to favour a criminal legal framework rather than a legal regulatory framework?
There is no valid reason to justify maintaining these prohibitions today. I came to this conclusion based on the empirical evidence reported in recent academic studies and the testimony of various stakeholders. What is more, I hope that this evidence and testimony will lead to an enlightened and objective debate in the Senate. My argument is against the sixth principle set out in in paragraph 2(f) of the Assisted Human Reproduction Act, a principle that is repealed in Bill S-216.
I am of the opinion that the health and ethical issues raised by the commercialization of gestational surrogacy and gamete donation no longer justify the prohibition of those practices.
It is time to end the ostrich routine and face up to the issue of assisted reproduction. It is 2020, and it is time for Parliament to take its head out of the sand and review the extent of the empirical evidence that supports decriminalization of commercial surrogacy and gamete donation in order to give Canadians regulations that truly protect their health and safety and ensure equity and justice for all those who help make parenthood efforts a success.
It is high time that this issue was revisited so that a comprehensive study can examine every aspect of assisted reproduction and offer concrete solutions to a problem that Parliament has refused to regulate appropriately for far too long.
Thank you for your undivided attention for this last 40 minutes.
Senator Miville-Dechêne, you have two minutes.
Senator Moncion, we’ve talked about this bill. You’re opening up a huge and complex debate on ethical issues. I was one of the women who drafted the opinion of the Conseil du statut de la femme stipulating that altruistic surrogacy was the only possible option for reasons of dignity and to prevent the commodification of the body. This is not paternalistic feminism, as you said. You’re reducing all this to labels, when there are ideologies on both sides of the argument.
I must say, with all due respect, that having a child is not a right. I don’t want to seem callous towards people who are infertile. I myself struggled with infertility, so I can speak to these issues and try to understand both sides of each option. Commercializing surrogacy is not that simple. This means that intermediaries will profit from these practices. You said that getting paid to carry a child is the same as having outside employment. Well, I don’t think so, because there comes a point when a woman can no longer carry a child. Then what does she do? She’ll be out of work. It’s not the same thing, if you think about women’s independence in terms of their income.
This is an extremely complex issue and the debate is just beginning. Here’s my question: What do you tell those women who carry a child and sign a contract, then end up wanting—
Excuse me, Senator Miville-Dechêne, but Senator Moncion’s time is up. Do you want another five minutes, Senator Moncion?
Is leave granted, honourable senators?
I hear a “no.” I’m sorry, your time has expired.
I’m asking whether Senator Miville-Dechêne would like to enter debate, or will she do that later?
I would like a few minutes to finish sharing my thoughts. Is that possible?