Fake it Till You Make it: Policymaking and Assisted Human Reproduction in Canada

Abstract

The Assisted Human Reproduction Act (AHR Act) came into effect in 2004. The AHR Act stipulates in s.12 that no reimbursement of expenditures incurred in the course of donating gametes, maintaining or transporting in vitro embryos, or providing surrogacy services is permitted, except in accordance with the regulations and with receipts. Ten years later, Health Canada still has not drafted the regulations governing reimbursement. Section 12 is therefore still not in force. Health Canada and others have asserted that there is a Health Canada policy on reimbursement and that reimbursement with receipts is legally permissible. We dispute the existence of such a policy and its legitimacy (if it exists). We also challenge the decision by Health Canada not to produce regulations and thereby make it possible for Parliament to bring s.12 into force. This intentional lack of action is worrisome on at least two fronts. First, it sidesteps the processes required for regulations and thereby ducks the Parliamentary oversight very deliberately built into the AHR Act. Second, it leaves Canadians who provide and who access assisted human reproduction uncertain about what is and is not permitted, and therefore fearful of, or at risk of, prosecution. We conclude that Health Canada should take the steps necessary to put regulations in front of Parliament so that Parliament will then be able to pass regulations and bring s.12 into force. Canadians should demand no less.

Hidden from view: Canadian gestational surrogacy practices and outcomes, 2001-2012

“…This finding suggests that the fraud conviction of fertility consultant Leia Picard and continued federal failure to regulate the reimbursement of expenses incurred by surrogates have not served to deter childless couples and individuals from seeking to create families through surrogacy. 51,52 While Canada's AR registry tells us about gestational surrogacy, little is known about other surrogacy practices. This study lacks the insights that would be gained by having information on surrogate and intended parent characteristics, and foreign and traditional surrogacy practices, nonetheless its findings lend weight to the demands made by legal experts, [15][16][17][18]29,38,54 ethicists 19,52 and intended parents [11][12][13] for a re-examination of the legal status of surrogacy arrangements, revision to provincial parentage laws, and review of federal AHR Act surrogacy provisions.…”

Achieving National Altruistic Self-Sufficiency in Human Eggs for Third-Party Reproduction in Canada

“…As a result, at the present time, there is clarity with respect to the prohibition on purchasing eggs, and considerable uncertainty with respect to what is legally permitted in terms of reimbursements for expenditures incurred in the course of donating eggs (with or without receipts). We have argued elsewhere that, under the law as it is currently in force "no reimbursements are permitted until the regulations governing reimbursements are in force" (Downie and Baylis 2013, 235;Baylis, Downie, and Snow 2014). Others, including Health Canada, appear to disagree with us (Health Canada).…”

“…It is important to note that while s.7 is in force, s.12 has not yet been brought into force. This is because the requisite regulations have not been drafted and passed (Baylis, Downie, and Snow 2014). As a result, at the present time, there is clarity with respect to the prohibition on purchasing eggs, and considerable uncertainty with respect to what is legally permitted in terms of reimbursements for expenditures incurred in the course of donating eggs (with or without receipts).…”

“…Clarity with respect to what expenditures are legally permissible could therefore increase willingness on the part of some women to donate. All that is required for there to be clarity is for Health Canada to draft regulations under s.12 of the AHR Act, for Parliament to pass those regulations, and for s.12 to be brought into force (Baylis, Downie, and Snow 2014).…”

Frozen in perpetuity: ‘abandoned embryos’ in Canada

“…Looking to the time limits established in the UK or New Zealand – countries with legislation similar to that in Canada – will prove informative in identifying both how time limits can be used, how they might be modified to speak particularly to the issue of so-called abandoned embryos (thereby avoiding some of the concerns about blanket storage limits), and the extent to which exceptions to, or extensions of, these limits might be appropriate. At the same time, at the federal level, there is currently little political will to engage in the governance of reproductive technologies ( Baylis et al, 2014 , Snow et al, 2015 ). Since 2006, when Assisted Human Reproduction Canada was officially created, the federal government has done little in the field of assisted human reproduction other than scale back the AHR Act .…”