The Government of Canada has proposed new regulations under the Assisted Human Reproduction Act (AHRA). 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:
- travel expenditures, including transportation, parking, meals and accommodation
- expenditures for legal or counselling services
- expenses for drugs, devices, products or services recommended by a doctor
- expenditures for the care of dependants
- expenditures for health, disability or life insurance coverage
- expenditures for obtaining medical or other records
- expenditures for maternity clothes (incurred by surrogates only)
- loss of work-related income incurred during pregnancy (incurred by surrogates only)
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:
- Reimbursement of income lost by surrogates during the post-partum period is not included under the proposed regulation
- Reimbursement of income lost by gamete donors as a result of donation is not permitted under the proposed regulation:
- Ova donors are required to be under the care of a doctor for up to 10 days before the donation, and several days after the donation. If the donor does not live close to the doctor, they will be required to take time off work to travel to a doctor.
- Where a sperm donor needs to travel to a donation clinic they cannot be compensated for any loss in income. There is only one clinic in Canada that receives sperm donation, so most sperm donors must travel to that clinic.
- Reimbursement for special dietary needs related to pregnancy is not included under the proposed regulation
- Reimbursement for home care and household help for pregnant or post-partum surrogates is not included under the regulation
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.
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).  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.
 See: http://www.gazette.gc.ca/rp-pr/p1/2018/2018-10-27/html/reg3-eng.html
 See: https://www.cba.org/CMSPages/GetFile.aspx?guid=fdc4cff1-9665-44d1-a39e-6f598a4c06af
 For more information see: https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction-regulations.html