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:
- Updating the regulations for safety of donor semen and moving the regulation from under the Food and Drug Act to the AHRA;
- Develop regulations for testing and screening the donors of ova to monitor adverse events and recalls; and
- Clarify eligible reimbursable expenses for parties involved in surrogacy arrangements and semen and ova donation.
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:
- No person shall pay consideration to a surrogate;
- No person shall reimburse a surrogate for an expenditure incurred in relation to her surrogacy unless a receipt is provided;
- A surrogate cannot be reimbursed for loss of work related income during the pregnancy unless a qualified medical practitioner certifies in writing that continuing to work may pose a risk to her health or to that of the embryo or fetus.
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.