Honourable senators, I rise today as the sponsor of Bill S-202, An Act to amend the Assisted Human Reproduction Act.

Since I delivered my speech on March 12, 2020, the world has changed dramatically. The pandemic has forced us to question what we take for granted, for better and for worse.

When it comes to assisted reproduction, the pandemic has highlighted some of the limitations and unfortunate consequences of the globalization of assisted human reproduction and reproduction tourism.

Last year, the media reported that around one hundred babies born to surrogate mothers were stranded in Ukraine because their adoptive parents could not pick them up when the borders closed. The adoptive parents, surrogate mothers and children were all harmed by this awful situation.

The substantial legal disparities that exist worldwide and the scarcity of legal systems that allow for better assisted reproduction reveal the inequalities among people around the world that compromise the health and safety of women and children. Canada’s legal framework reinforces these international inequalities by failing to fully regulate assisted human reproduction or gamete donation domestically.

My concerns regarding the security of women and children in Canada, and also around the world, made me question the assisted procreation laws in Canada. To help me understand the issues and how the legislation and regulation can be improved, I met with fertility lawyers, criminal lawyers, doctors, surrogates, intended parents and agency representatives. These consultations led me to believe that the current criminal legal framework is inadequate and at the root of the health and safety issues linked to assisted reproduction.

In addition, I informed my opinion with extensive research into academic literature, mainly in comparative and Canadian politics, to try to understand why Canada decided to criminalize the practice in the first place and to learn about the law and practices surrounding surrogacy and gamete donations in other jurisdictions. Whether we are for or against surrogacy, the practice, as is presently legislated in Canada, is flawed and needs to change.

What is at stake is the health and safety of women and children in this unregulated practice where agencies operate with very little guidance. The criminal framework encourages a culture of silence — the perfect fuel for abuse or negligence of all kinds.

For example, an investigation by the CBC highlighted the case of one woman who was not told about the risk of back-to-back pregnancies without proper recovery time in between. I met with former surrogates who had multiple back-to-back pregnancies. One woman had seven pregnancies and gave birth to nine children, and others had serious complications following ova retrievals. I was not certain that proper care and information was provided to inform their decisions appropriately.

These situations happen in the current legal context and raises the question as to why we are so focused on regulating the money over health and safety. Therefore, my concerns regarding the health and safety of women and children involved are not alleviated by the fact that women become surrogates solely for altruistic reasons in Canada, and the scientific literature confirms the absence of a link between those two things.

Last week, Senator Miville-Dechêne and I were invited to a screening of The Secret Society, which is to be released this fall. This documentary shines light on certain aspects of egg extraction from women who, for altruistic reasons, choose to undergo invasive hormone therapy to donate eggs that will be used for artificial in vitro insemination.

The film sheds light on couples with fertility problems and describes the processes they go through and the costs involved in becoming parents. It also covers, to a lesser extent, surrogacy and the reasons that lead women to become surrogate mothers.

While watching this documentary, I asked myself why a women would choose to inject herself in the abdomen with hormones three times a day and to alter the chemistry and functioning of her body and then undergo an invasive and potentially dangerous surgical procedure in order to donate ova. I asked myself why a couple would choose to make multiple attempts to become parents and pay significant amounts of money to an in vitro fertilization clinic without knowing whether the process will result in a viable pregnancy. I also asked myself why a woman would agree to undergo a surgical procedure to be inseminated, carry someone else’s child, be pregnant for nine months and agree to live with all the discomfort and inconveniences that go with pregnancy.

While watching the documentary, I also asked myself why our laws and regulations allow doctors, medical clinics, fertility clinics and lawyers to operate and reap the economic benefits associated with the infertility market, but criminalize those associated with egg donation and surrogate pregnancy.

After viewing the documentary, the participants were asked to comment on the quality and the content of the film. Some elements clearly show the realities of this practice and its downsides.

It is off-putting to see a couple “shopping” for a baby online, talking about the donor’s size, or about their future baby’s eye colour, skin colour or hair colour. It is downright disgusting to see exhibitors at the Canadian Fertility Show promoting their products and services that debase and commercialize the practice.

One of the people invited to the discussion was a researcher who briefly explained the situation with egg donors in the United States. She said that American women who donate eggs can be paid up to $10,000 per retrieval and that many of these women donate eggs as a way to pay off student loans or to support themselves. The researcher said that some of these young women donate many times, that they put their health at risk, exposing themselves to potential infertility issues or cancers, and that they are at risk of being exploited by unscrupulous practitioners who view egg retrieval solely from a financial perspective.

In light of these observations, I found myself wondering whether we can set our prejudices aside and agree to study the issue of gamete donation and surrogacy, as we do with all potentially controversial issues.

In the interest of improving the health and safety of women and children, I would like senators to examine the issue with an open mind and to set aside ideologies and beliefs. I introduced Bill S-202 in this chamber of sober second thought with the hope that we can collectively seek to understand the rationale or lack thereof behind the decision to favour a criminal legal framework over a regulatory legal framework in Canada.

Let me briefly present the state of the law in Canada. First and foremost, it is illegal to pay for ova or sperm donation. It is also illegal to pay a surrogate, but it is legal to reimburse her for certain pregnancy-related expenses such as additional food, clothing, vitamins and transportation costs incurred while travelling to medical appointments. To give a mundane example, it is criminal to buy flowers and chocolates for a surrogate while she is pregnant. It is also against the law to pay a donor.

If found guilty of violating the Assisted Human Reproduction Act, an intended parent can face up to 10 years in prison and fines of up to $500,000.

In the context of the pandemic, other issues have arisen with respect to expenses while exacerbating health and safety risks related to assisted reproduction. For example, in the current times, intended parents cannot legally compensate their surrogates for them to safely be at home. This has put surrogates and children in unsafe situations.

As for intended parents, they are rightfully afraid of the legal consequences of reimbursing ineligible expenses under the Assisted Human Reproduction Act.

The intent behind the amendments proposed to the Assisted Human Reproduction Act is to make it possible to set parameters and limits for assisted human reproduction in order to protect the health and safety of women and children and prevent abuse. Decriminalization is required to implement such a regulatory framework. The challenge is achieving consistency between the objective of the legislation and its actual effects.

The time has come 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; and free and informed consent.

The major principles also bring to mind the idea that:

(e) persons who seek to undergo assisted reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status;

The criminalization of commercial surrogacy and gamete donation is not consistent with these principles and prevents us from adopting appropriate regulations.

The amendments proposed in Bill S-202 relate primarily to section 6 of the act, which pertains to surrogate mothers, and section 7, which deals with sperm or ova donation. Overall, the bill seeks to decriminalize payments made for a surrogacy, sperm donation or ova donation contract by repealing the provisions of the act that prohibit these actions.

Finally, the bill seeks to put in place restrictions on who can become a sperm or ovum donor. Donors must be at least 18 years old, must be able to consent to the donation and must not have been coerced into donating.

With regard to surrogacy, the bill also sets out specific restrictions on who can become a surrogate mother. These women must be at least 21 years of age, they must have the mental capacity to consent and they must not have been coerced into doing so.

In addition, the bill eliminates the prohibition against the reimbursement of expenses incurred by surrogate mothers, with certain exceptions. Thus, instead of broadly prohibiting the reimbursement of expenses, apart from those specified in the regulations, surrogate mothers can receive general compensation and the process is simplified.

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. Although regulations came into effect last June to clarify what expenses are eligible, the uncertainties and the threat of criminalization remain.

Broadly, decriminalizing payments 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 legal framework proposed 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-202 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.

With respect to the agencies, Bill S-202 would make it clear that surrogacy agencies, like adoption agencies, are perfectly legal and legitimate by repealing section 6(2) of the Assisted Human Reproduction Act, which reads:

No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.

Provinces and territories would be able to regulate or licence these agencies much like adoption agencies are regulated at the provincial level.

When it comes to the health and safety of women, but also to the ability of the intended parents to be vocal when there is abuse, it is important that the agencies be regulated. Agencies are currently completely unregulated and are likely to remain unregulated as long as sections 6(2) and 6(3) exist, which are likely void as against public policy but interfere in the provinces’ ability to regulate the agencies.

Furthermore, intended parents are unlikely to sue an agency for breach of contract or negligence when they are fearful that they may have breached section 6(2) of the act and, therefore, the agencies that do exist are often unaccountable. The criminal nature of the prohibition prevents an open discussion on improving the current regulatory regime. It also prevents the provinces and federal government from fully regulating the practice and pushes it behind closed doors for fear of legal repercussions.

To be clear, for surrogacy, the intended parents enter into direct agreements with the gestational carrier prior to the embryo transfer. Typically, both the intended parents and the surrogate obtain independent legal advice on the agreement prior to its execution, and the clinic waits for a letter of legal clearance to be received prior to engaging in the embryo transfer process.

The agency itself has intended parents enter into a different agreement with respect to the agency’s services.

The bill focuses on the decriminalization, knowing that the regulation of agencies and other aspects of assisted reproduction must happen at a provincial and territorial level. In Reference re Assisted Human Reproduction Act, the Supreme Court of Canada found that licensing and regulation requirements were ultra vires the federal government’s powers, and these are correctly within the provincial government’s powers.

An overly ambitious bill that seeks to centralize regulation through federal legislation would risk being found unconstitutional in light of this reference and the division of powers in the Constitution Act, 1867. So long as sections 6(2) and 6(3) exist, it is unlikely that a province will step in to regulate agencies which may or may not currently be legal.

Therefore, this bill would allow the provinces to regulate the agencies, and if the intended parents had an issue with the surrogacy agency breaching its agreement or otherwise acting improperly, the intended parents could take measures such as suing the agency for breach of contract or negligence without fear of having perhaps committed a crime by breaching section 6(2) of the Assisted Human Reproduction Act.

It is against the law to pay a donor under section 7(1) of the act. Ironically, Canada allows gametes to be imported from other countries, even if the donors there are 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.

In my speech at second reading during the first session, I gave you some background on the development of the current assisted reproduction regime. That regime was studied a long time ago, and, at the time, the final report urged the government to proceed with care. It is important to remember that we were in the early stages of studying human cloning, and there were ethical considerations associated with such practices. There were also concerns related to a more conventional view of procreation and family. Same-sex marriage was not yet legal, and fertility problems were not yet part of the political discourse. All in all, it was a very different time.

It’s important to look at the impact of Canada’s legislative regime on the behaviour of Canadians abroad.

Many Canadians travel to countries where surrogate mothers face increased and pervasive risk of exploitation. Because of the state of the law in Canada, Canadians who wish to use alternative methods of assisted reproduction are often unsure and afraid that an ineligible expense may be seen as an illegal payment. They also lack access to surrogates and gametes domestically because of the impact of the current state of the law. This encourages people to travel to other countries with more relaxed rules to use the services of surrogate mothers and obtain gametes. This practice leads to a range of problems, including the exploitation of poor and racialized women in other countries and difficulty in accessing gamete and surrogacy services in Canada.

In theory, you could say that Canada’s legislative approach is contradictory because we accept a regime that favours the exploitation of women in other countries out of a fear of exploiting women in Canada. By making it easier to use a surrogate mother in Canada, the bill would reduce Canadian exploitation of women in other countries and be more coherent with the underlying principles of the Assisted Human Reproduction Act.

I was surprised to find that there is no empirical evidence that would support differential treatment in Western countries toward paid surrogates and women who become surrogates for altruistic reasons. Both are vulnerable to some degree and need to be better protected under an adequate regulatory framework.

In the CBC investigation, John Kingdom M.D., a physician and professor at the University of Toronto says, “I think we should recognize that surrogates are altruistic, kind people who are at risk of power imbalances.”

Empirical evidence has reduced significantly the concerns that arose in the early days of the assisted reproduction time as to what the typical profile of surrogate mothers is. It was a belief, and still is to this day for certain people, that in wealthy countries, surrogates would be women who comprise some sort of reproductive underclass to serve the needs of wealthy White women. Evidence has proven that there is no overrepresentation of poor, uneducated and racialized women. In fact, contrary to certain beliefs, the most recent research shows that the typical profile of a surrogate mother in the United States and in Western countries are not poor, uneducated women of colour who comprise some sort of reproductive “underclass” to serve the needs of wealthy White women.

While this dichotomy is one of the reasons why Canadian lawmakers justify the need to criminalize commercial surrogacy, it is not based on empirical evidence. 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, intended parents, gamete donors, gamete recipients or children.

Whether we agree or not with paid gamete donation or surrogacy, we are at a point in time when this matter needs to be looked at and studied with a 2021 lens. Our world has changed considerably since the Assisted Human Reproduction Act was adopted. 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 longer any valid reason to maintain these prohibitions today. It is time to take another look at the extensive empirical evidence that supports the decriminalization of commercial surrogacy and gamete donation so that Canadians can benefit from regulations that truly protect their health and safety and ensure fairness and justice for all those who successfully contribute to helping others become parents.

It is high time that this issue was re-examined and we undertook a comprehensive study that would focus on every aspect of assisted human reproduction and propose tangible solutions to a problem that Parliament has refused to properly regulate for far too long.

Thank you for your attention.