Françoise Baylis supports the proposed new regulations for reimbursement related to assisted human reproduction.

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Finally! Fourteen years after the Assisted Human Reproduction Act came into force and two years after the federal government issued the Notice of Intent to develop regulations under the Act, Health Canada has proposed three sets of new regulations, including regulations on reimbursement of expenditures. Why is this important? Because, at last, Canadians who want to use assisted human reproduction to build their families and who also want to be law abiding citizens, can know (and therefore choose to follow) the law on reimbursement.

The Canadian Assisted Human Reproduction Act of 2004 prohibits payment for surrogacy, arranging the services of a surrogate mother, and purchasing gametes (egg and sperm).  Sections 6 and 7 of the law state:

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.
7. (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.
8. (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.

Photo credit: Angel Petropanagos, Mississauga, Ontario. October 2018.
Image description: Colour photo of sun peaking through tall trees in woods.

Women can nonetheless choose to participate in altruistic surrogacy, and both women and men can choose to donate their gametes. As well, in principle, they can be reimbursed for receipted out-of-pocket expenses in accordance with the regulations. The reasoning underlying this exception to the prohibitions on payment is that women and men should be able to be altruistic without having to incur costs. Section 12 of the law legalizes reimbursements made in accordance with regulations:

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;
(b) reimburse any person for an expenditure incurred in the maintenance or transport of an in vitro embryo; or
(c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.

The problem for the past 14 years has been that the regulations referenced in Section 12 were never written. For this reason it has long been unclear whether, and if so how, legal reimbursements could occur.

In 2013, charges were laid for the first (and only) time under the Assisted Human Reproduction Act for violating the prohibitions on payment. Leia Picard pled guilty to paying five women for twelve egg “donations” at $5,000 per “donation,” paying three women between 22,550 and $30,200 to act as surrogates, and accepting $31,000 for arranging the services of a surrogate. While Leia Picard (now Leia Swanberg) is not the only one to have made or accepted such payments, she is the only person ever charged.

The proposed new regulations released on October 26, 2018 specify which expenditures can be reimbursed. Egg and sperm donors as well as surrogates can be reimbursed for travel expenditures, care of dependents, counselling services, legal services, insurance coverage, and more. In addition, surrogates can be reimbursed for maternity clothes, expenditures related to the delivery, as well as loss of work-related income due to pregnancy.

In addition to listing reimbursable expenditures, the proposed new regulations stipulate that all expenditures are to be receipted and properly documented, with all documents kept for a period of six years. As well, a team of inspectors is to ensure that the regulations are enforced.

With the introduction of a robust regulatory framework we have a clear and viable alternative to the commercialization of assisted human reproduction. For much of this past year, special interest groups as well as clinicians, lawyers and brokers working in the fertility industry have been lobbying to replace the current federal altruistic system with provincial commercial systems.

This lobbying gained traction in May 2018 when Mr. Anthony Housefather, a Liberal Member of Parliament, introduced bill C-404, An Act to amend the Assisted Human Reproduction Act. The bill recommended deleting the principle that “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends” should be prohibited. It also recommended eliminating all sections of the legislation that specified prohibitions on payment. In support of this bill Mr. Housefather complained about uncertainty with respect to reimbursement of expenditures and the absence of proper oversight.  With the proposed regulations both of these issues are addressed.

So it is that we may finally have all of the elements needed to promote and sustain an effective altruistic system that aligns with the Act’s principled commitment to prohibit the commodification of human reproduction. Kudos to Health Canada for finally proposing the long-anticipated, much needed regulations.

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Françoise Baylis is University Research Professor at Dalhousie University @FrancoiseBaylis