Thursday December 6, 2018

Reimbursement Under the Assisted Human Reproduction Act: What Changes are Coming?

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

The Government of Canada has proposed new regulations under the Assisted Human Reproduction Act (AHRA).[1] These regulations could lead to significant changes for individuals who use assisted reproductive technologies. One of the proposed regulations defines the expenses that are permitted to be reimbursed to surrogates and gamete donors.

‘Assisted reproductive technologies’ refers to a set of medical procedures that are used to address infertility. Assisted reproduction is common in Canada and for some, particularly in the LGBTQ community, these technologies provide the most reliable means by which to have biological children.

The AHRA permits altruistic (i.e., non-commercial) participation in assisted reproduction. The AHRA states that you can only pay a surrogate or gamete donor for their receiptable expenses, in accordance with regulations made under the Act. The section only comes into force once regulations have been passed and the government has never passed regulations that specify which expenses are permitted to be reimbursed.     

The proposed regulation attempts to outline these permitted receiptable expenses. However, it omits a number of expenses that are important to many gamete donors and surrogates.

The Proposed Reimbursement Regulation

The proposed regulation outlines the expenses that are permitted to be reimbursed to surrogates and gamete donors. While the list of permitted expenses is long, there are some notable exclusions. Under the proposed regulations, allowable expenses include:

What is at Risk of Being Excluded?

Donors and surrogates can incur a variety of expenses and many of these expenses are not reimbursable under the proposed regulations. This may result in donors and surrogates bearing many of the financial costs of donating genetic material or carrying a baby. In Canada, the demand for gametes and surrogates is larger than the supply – not allowing all reasonable costs to be reimbursed creates additional barriers to creating a family.

A group of concerned Fertility Law lawyers from across Canada have identified and addressed the limitations of the proposed reimbursement. This group of lawyers has drawn on years of experience in assisting client’s access to assisted reproduction. The group has presented its concerns to Health Canada. 

Concerns Identified by the Group Include:

The Canadian Bar Association (CBA) has also weighed in, in the past it has argued that regulations under the AHRA should not limit the availability of surrogates or gamete donors.[2]

There is Still Time for Public Participation 

There is still time to address these concerns with the regulation. The Government of Canada is accepting submissions from interested parties across the country until January 10, 2019. Interested parties can submit feedback in writing, and in-person consultation sessions are scheduled in Winnipeg (December 6) Vancouver (December 8). [3] An in-person consultation was held in Halifax on December 2, 2018, and Terrance G. Sheppard and James Bray from BOYNECLARKE LLP attended.

Lawyers at BOYNECLARKE LLP will continue contributing to efforts to improve surrogacy and gamete donation in Canada and will be keeping a close eye on the proposed regulations as they evolve.

For more information on the changes to the Assisted Human Reproduction Act, please contact Terrance G. Sheppard. 

 

[1] See: http://www.gazette.gc.ca/rp-pr/p1/2018/2018-10-27/html/reg3-eng.html

[2] See: https://www.cba.org/CMSPages/GetFile.aspx?guid=fdc4cff1-9665-44d1-a39e-6f598a4c06af

[3] For more information see: https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction-regulations.html

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