The Assisted Human Reproduction Act is the main law governing surrogacy and the donation of sperm and ova in Canada. It prohibits certain activities and allows other activities. On February 20, 2020, Bill S-216 was introduced into the Senate for its first reading and was given a second reading on March 12, 2020. If the Bill ultimately passes into law, it will make major changes. Whether a female person chooses to be a surrogate for altruistic or commercial reasons, the changes aim to protect her and the intended parents during the pregnancy. The changes would make it legal for people to pay female persons for their surrogacy services and to pay donors for their sperm and ova. Overall, the changes will make it easier to obtain surrogacy services and will increase the general supply of sperm and ova.
Proposed decriminalization of surrogacy
The proposed changes to the Assisted Human Reproduction Act would make it lawful to pay for surrogacy services. It would allow people to offer to pay and to advertise to pay female persons for surrogacy.
Regarding expenses, the changes to the law would allow surrogates to be reimbursed for costs associated with their surrogacy. Previously, a surrogate was only allowed to be reimbursed for a narrow list of expenses that directly resulted from her surrogacy and the surrogate and intended parents could have faced criminal offences punishable by 10 years in jail and a $500,000 fine if the reimbursement contravened this law. Further, the changes to the law would also make it easier for surrogates to be reimbursed for work-related income losses that they incurred during their pregnancies even if they do not have a medical reason requiring them to abstain from work.
Overall, the new legal framework would make expense reimbursement a matter of private contract law rather than criminal law. It would allow surrogates and intended parents to agree on the conditions for reimbursing expenses, including the type of expenses that can be reimbursed, the maximum amount that can be reimbursed, and the evidence required to support expenses.
Proposed decriminalization of payment for sperm, ova and other human reproductive materials
Currently, it is illegal for a person to purchase, offer to purchase, or advertise the purchase of sperm or ova from a donor (or from a person acting on behalf of a donor). Ironically, however, people can import sperm or ova from other countries even if the donor in that other country has been paid. This explains why 90% of sperm donations in Canada are from the United States and only 5% to 10% are from Canadian donors. Under the proposed changes to the Assisted Human Reproduction Act, this payment restriction would be lifted unless the donor is under 21 years of age, is unable to consent, or is being coerced to donate.
However, the law dealing with in vitro embryos would not change. The purchase or sale of such embryos would remain illegal. Further, it would remain generally illegal, except as strictly allowed by regulations, to reimburse a person for expenditures incurred for maintaining or transporting in vitro embryos.
Lawyers at BOYNECLARKE LLP can help you navigate the legal issues in Fertility Law. If you are seeking legal advice, please call (902) 469-9500 to schedule your consultation with Terrance G. Sheppard.