Françoise Baylis and Jocelyn Downie comment on the first prosecution under the Assisted Human Reproduction Act and criticize Health Canada for its ongoing failure (since 2004) to draft the regulations on reimbursement of receipted expenses.
Friday December 13, 2013 was an historic day for assisted human reproduction in Canada. On this day, Leia Picard (sole director of Canadian Fertility Consulting Ltd.) pled guilty to purchasing human eggs from five women, paying three women to act as surrogates, and accepting payment for arranging the services of a surrogate. All of these activities are offences under the Assisted Human Reproduction Act (AHRA). The AHRA states:
6. (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
6. (2) 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.
7. (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.
In the “Agreed Statement of Facts”, Leia Picard admitted to violating each of these sections of the AHRA and for this the court imposed a fine of $60,000. To put this in perspective, Picard paid five women for twelve egg “donations” at $5,000 per “donation”. She paid three women between $22,550 and $30,200 to get pregnant, carry the pregnancy to term, and deliver the baby to the “intended parents”. She was herself paid $31,000 for referring three Canadian couples to a surrogacy broker in the United States. These couples in turn paid $130,000, $120,000, and $149,000 to the broker.
There is much to be concerned about with this case, not the least of which is the small financial penalty. Indeed, the penalty is so low that others involved in similar activities might just consider fines a “cost of doing business”, factor this cost into their price, and not modify their behaviour. Spread across all of the transactions, the $60,000 fine represents a mere $3,333 per transaction. In a world in which individuals are willing to spend, for example, $149,000 for a child through a surrogacy arrangement, this does not seem much of a deterrent.
Of greater concern, however, is the fact the “Agreed Statement of Facts” contains the following stunning statement: “Health Canada policy permits reimbursement to donors and surrogates of expenses and disbursements related to donation or surrogacy.” This suggests that had Ms. Picard been more diligent in obtaining appropriate receipts for reimbursement she might have avoided at least some of her legal problems. But how can this be?
What is this Health Canada policy? When did it come into effect? What process was followed to draft this policy and bring it into effect? Under what and whose authority within Health Canada was this policy approved? We have been in communication with Health Canada for months about the legal permissibility of reimbursement of expenses and disbursements under the AHRA. We have never been provided with a copy of an official Health Canada policy. There is a textbox and a statement about the legal status of reimbursements on the Health Canada website. These are not policy, however, insofar as they lack the important process, and democratic accountability, of policy.
Furthermore, even if a policy permitting reimbursement exists, it is inconsistent with the AHRA. Here’s why.
Section 12 of the AHRA mentions reimbursement:
12. (1) No person shall, except in accordance with the regulations,
(a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum;
(c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.
(2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure. (emphasis added)
This does indeed appear to suggest that reimbursements are legally permitted under the AHRA. However, s.12 – the provision allowing for reimbursement – is not in force and, even if it were in force, as there are no regulations for s.12, it would not ever be possible to reimburse a donor ‘in accordance with the regulations’.
Our worry here is two-fold. First, we worry that this case will be taken as permission for individuals to set up businesses to facilitate the commercialization and commodification of human eggs and surrogacy – precisely what the AHRA was intended to prevent. The AHRA stipulates that “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition.”
Second, we worry that the case (through the “Agreed Statement of Fact”) will entrench the erroneous view that reimbursement is currently legal. If this happens, then the police will not charge, and crown attorneys will not prosecute, those who provide reimbursements to women for their eggs or for surrogacy (as long as they are careful in their record-keeping). This could happen despite the fact that any reimbursement is illegal under the AHRA until s12 comes into force.
Furthermore, given that there is no official Health Canada policy (that we know of), there is no guidance as to what specific expenses might be permissible reimbursements. Are gas, parking, other travel expenses, multi-vitamins, maternity clothing, childcare, housekeeping, “sick days” reimbursable? Are “hassle” and “toll on one’s body” potentially reimbursable?
Canadian fertility specialists and consultants who want to be law-abiding citizens should be able to know what the law is. Health Canada may wish that reimbursements were legal under the AHRA. But wishing doesn’t make it so. To make this wish come true, Health Canada needs to draft the regulations required for s.12 to operate and then take the further steps necessary to bring s.12 into force. Only then will Health Canada be correct in saying that reimbursements are legal. Only then will Canadians know for sure what reimbursements are legally permitted in Canada.