January 26, 2017

Health Canada Looking to Develop Regulations Governing the Reimbursement of Expenditures to Surrogates

Terrance G. Sheppard Authored by: Terrance G. Sheppard Posted in: Family Law

In a Press Release dated September 30, 2016, Health Canada announced they were looking at making several adaptations to the regulations under the Assisted Human Reproduction Act (“AHRA”).  Specifically, they are looking at:

The first two items are likely to be reasonably uncontroversial; It has always been an oddity that donor semen regulation was under the Food and Drug Act.  However, the proposal to regulate reimbursable expenses for surrogates has caused a lot of consternation. 

Currently, the AHRA states: 

The AHRA was passed by the Federal Government in March of 2004.   Almost immediately they began gathering information and preparing procedures to regulate the reimbursement of expenditures to surrogates.  In the current regulation, Section 65(1)(e) allows the government to pass regulations respecting the reasonable expenditures that may be reimbursed.

In 2007 they published a Public Consultation Document looking for public feedback and input. Findings showed many believed that the proposed regulations were very restrictive.  The Canadian Bar Association made submissions to Health Canada in September 2007 which proposed to expand the expenses that could be reimbursed.  In their submission the CBA stated:

"The categories set out in the Consultation Document for Expenditures related to surrogacy are, in our view, far too narrow.  Again, the list should not be exhaustive."  

The fear with the pending regulations is that they will be too narrow and fewer and fewer women will want to become a surrogate.  This could drive Canadian intended parents to the United States or overseas looking for surrogates where there is little regulation and the cost are high.

If there are any questions related to fertility law, contact Terrance G. Sheppard.

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