Dave Snow questions the supposed public consensus behind Canada’s commercial surrogacy prohibition.

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From Quebec’s decision to eliminate funding for in vitro fertilization to debates over egg freezing to concerns about “three-parent babies,” rarely a day passes in Canada without assisted human reproduction making the news. It is therefore curious that, in the face of social and technological change, little noise has been made about one growing aspect of assisted human reproduction: surrogacy.

In Canada, surrogacy is legal, but it must be unpaid (or “altruistic”). Section 6 of the Assisted Human Reproduction Act prohibits commercial surrogacy, with punishments for commissioning parents and/or brokers reaching as much as $500,000 and ten years in prison. While reimbursement of surrogacy-related expenditures is permissible under section 12 (although the state of the law is unclear), the legislation was deliberately crafted to ensure that surrogates cannot profit from their gestational services.

Tom Thomson, Autumn Foliage (1915)

Why a criminal ban on commercial surrogacy? During Canadian legislative debates from 2001-2004, a sharp (some might say artificial) line was drawn between “altruistic” and “commercial” surrogacy, with the latter singled out as an exploitative and commodifying activity: exploitative because the lure of money induces poorer women to undertake risky activity for which they are beholden to wealthier commissioning parents, and commodifying because it treats women’s labour as a commodity and children as objects to be bought and sold. Although there was limited evidence to confirm or deny these claims, the arguments stuck. Prohibiting payment was seen as the best way to limit (if not eliminate) these possibilities.

Some parliamentary witnesses—primarily those who actually had experience with surrogacy—rejected a criminal ban, arguing that exploitation and commodification could be avoided through careful regulation. Others wondered how it could be possible that gestating women could be more exploited in a commercial than an unpaid arrangement. Yet the political support for a criminal prohibition on commercial surrogacy was ubiquitous and crossed partisan, regional, and ideological boundaries. Only a single MP (British Columbia’s Keith Martin) spoke out against prohibiting commercial surrogacy. For this reason, MPs frequently referenced a national consensus against commercial surrogacy, one that reflected uniquely Canadian values.

Even a decade ago, this “consensus” seemed manufactured. Limited polling data suggested Canadians were, at best, divided on commercial surrogacy, with little evidence of a preference for a criminal ban. All sides of the debate agree that eliminating the commercial aspect will reduce the number of women willing to act as surrogates, so it’s not surprising that in the interim, Canadians desperate to start their families have done whatever they can to get around the law. There are reports of Canadians going to the black market, to the United States, and to the developing world—surely a more exploitative arrangement than at home—to pay a surrogate for her services. The law prohibiting commercial surrogacy itself has barely been enforced. Eleven years after the passage of the Assisted Human Reproduction Act, one charge has been laid.

For many, the status quo is intolerable, with the law simultaneously creating perverse incentives for Canadians to engage in risky arrangements abroad while preventing Canadian women for receiving compensation for gestating and bearing a child at home. And yet serious discussions of changing the law are largely absent from the political agenda. Last May, independent MP Dean Del Mastro introduced a private member’s bill to remove the prohibition on commercial surrogacy, accompanied by an open letter on how his “heart was changed.” The bill received little attention and is unlikely to be passed. (Its fate wasn’t helped by Del Mastro’s subsequent conviction for contravening the Canada Elections Act, for which he resigned his seat to prepare for sentencing.)

Although Del Mastro’s bill will likely die, the issue should not. At the very least, more information is required about whether the Canadian public actually opposes commercial surrogacy, and whether it believes a criminal ban is appropriate. Furthermore, an additional decade provides us with ample opportunity to draw from the lived experience of commercial and unpaid surrogates and commissioning parents, both in Canada and abroad, to see how payment (or lack thereof) has shaped their experience. Early studies from Britain and the United States suggest surrogates are neither exploited nor coerced into surrogacy for financial reasons. There is no reason to suggest Canadian surrogates would feel otherwise.

Perhaps commercial surrogates in wealthy countries are exploited, children born through surrogacy are treated as commodities, and there is a national consensus against the practice in Canada. But surely it’s incumbent upon the federal government to provide evidence of this to justify a criminal ban. At a time where the language of “evidence over ideology” is pervasive in Canadian politics—from assisted dying to safe injection to sex work—we seem remarkably willing to accept a policy not grounded in empirical evidence. If the government is going to lecture Canadians about how to behave, it ought to stop reading from old notes.

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Dave Snow is a Killam Postdoctoral Fellow in the Faculty of Medicine at Dalhousie University. @adavesnow