Talking about decriminalization is not enough

Katie Hammond argues that discussions surrounding the Assisted Human Reproduction Act must go beyond decriminalization.


According to the Assisted Human Reproduction Act, payment for surrogacy, for arranging the services of a surrogate mother, and for egg and sperm donation is illegal. Recently, Anthony Housefather, a Liberal member of Parliament, has announced a plan to introduce a private member’s bill to change this. His proposed bill, which aims to decriminalize these payments, has generated heated debates and sparked public discussions about third party reproduction in Canada.

There are some good reasons for decriminalizing payment for surrogacy and gametes. For example, the apparent dearth of available surrogates and gamete donors in Canada, might be creating access issues for intended parents. Some intended parents are paying surrogates and gamete providers despite the ban, but since payment is illegal there is no one for these individuals to turn to if one party does not fulfill their end of the bargain. Other intended parents are seeking surrogates and gamete providers in other countries, and/or using gametes that have been shipped to Canada. However, the ability to access these services and reproductive materials abroad is limited to people of a particular socio-economic demographic and there are concerns about the quality of care. Moreover, it is hypocritical to prohibit payment for surrogacy, sperm and eggs within Canada, while allowing Canadians to go elsewhere for these services and reproductive materials.

Despite these reasons to decriminalize payment for surrogacy and gamete donation, decriminalization alone is not enough to support the ethical provision of third party reproduction. There are some other things that we need, and should prioritize in public discussions.

Photo Credit: Victor Hernandez. Rattlesnake Point, Milton Ontario. April 2018.
Image Description: Large grey rocks overlooking a field with trees and bushes.

First, we need to include the voices of intended parents, surrogates, egg donors, sperm donors and brokers. In particular, intended parents need to be able to share their honest accounts of traveling abroad, and of paying for surrogacy or gamete donation without risk of legal repercussions, so that we can get a full understanding of the current situation. While obviously these discussions need to include men, assisted reproductive technologies are applied more often and more invasively to women’s bodies. This conversation needs to include the voices of women, whose perspectives were in many ways overlooked when feminist control of the Baird Commission was lost.

Second, conversations about decriminalization need to coincide with conversations about improving medical care and collecting research on the long-term health effects of egg donation. As I have stated in prior blogs, and as academics like Vanessa Gruben have pointed out, there are concerns about how the business nature of the fertility market undermines the medical care that surrogates and egg donors receive. If one of the goals of decriminalizing is to encourage more Canadian surrogates and gamete donors to participate, then more surrogates and egg donors will be receiving medical care within Canada. Part of improving medical care means having a better understanding of the long-term risks to surrogates and egg donors so that they can make informed decisions. Thus, we need to talk about the lack of information that exists, and encourage people’s participation in this kind of long-term data collection.

Third, we need to consider the role of provinces in regulating and monitoring surrogacy and gamete donation, and the possibility of collaboration between provincial governments. In his National Post op-ed Housefather discusses how the provinces could create a framework for compensation, that there could be licensing and regulation of agencies, and that we should have a registry to keep track of information for donor-conceived children. I am not convinced that decriminalization is going to be the impetus that the provinces need in order to regulate these issues. For instance, provinces could have already been tracking information for donor-conceived children but have not. If there is little or no impetus from the provinces, then this will leave us with no regulation, or gaps in regulation between the provinces.

Finally, after many years of waiting, it seems as though we are finally going to have regulations on reimbursement. Lack of clarity, because of these missing regulations, has been a major complaint about the Assisted Human Reproduction Act, leading to uncertainty about what is legal. As a first step, it might be prudent to assess how these regulations affect the sphere of assisted reproductive technologies in Canada before making a decision about decriminalization.

Ultimately, through his proposed private member’s bill, Housefather seems to have caught the attention of the country. I commend him on generating a much needed conversation about the issues with Canada’s ban on paying for surrogacy and gamete donation, and on being paid to act as an intermediary between surrogates and intended parents. Now that we have the country’s attention we need to pay attention to the voices of intended parents, surrogates, gamete donors and brokers and we need to discuss important issues that are tied to decriminalization. A conversation about decriminalization, alone, is not enough.


Katie Hammond is a second year law student at McGill University. @HammKatie

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