On June 9, 2020, Health Canada’s Reimbursement Related to Assisted Human Reproduction Regulations came into force. Canada has long banned payment to egg and sperm donors, as well as surrogates, and questions have persisted as to when a reimbursement or other exchange of money might count as a “payment” and risk criminal prosecution under Canada’s Assisted Human Reproduction Act, and when it is permissible.
I had a chance to speak to Sara Cohen, a Canadian attorney and assisted reproduction technology law expert, about the new guidance and whether it is a step forward. Her answer was nuanced. Yes, the guidance document was generally positive in clarifying certain matters, but it did not address a bigger issue — the underlying law.
Good News. Cohen was quick to praise Health Canada in its process for developing the clarifications to the law. The agency had reached out to numerous professionals in the area, including Cohen, and she believes that the guidance document reflects the government really listening to what the professionals in the trenches were saying as to how the law was, and should be, interpreted. Good work, Health Canada!
For example, the Regulations permit reimbursements for things such as expenditures for groceries and telecommunication expenses. It wasn’t entirely clear before what those expenses could include. Health Canada provided a guidance document that clarifies that the costs must be extra and related to the assisted reproduction. The guidance document describes how a pregnancy requires the consumption of an extra 350 to 450 calories a day. (As does quarantine, no?) So intended parents can cover the costs related to the extra calories but should not be covering all of the surrogate’s groceries or her family’s groceries. Similarly, intended parents can pay telecommunication costs related to the pregnancy, such as long-distance charges to speak to related professionals or the intended parents. (Apparently long-distance charges are still a thing in Canada.) “However, much like for groceries, the person who reimburses must be able to demonstrate that the amount being reimbursed is for the costs that are directly related to the surrogacy and not disguised forms of payment (e.g., paying a surrogate mother’s entire telecommunications bill, including for cable TV, high speed internet, etc.)”
Bad News. While Cohen felt Health Canada did a good job of listening to practitioners on the surrogacy front, she thought the guidance document failed to address certain concerns when it came to gamete donation. Specifically, Section 12 of the Assisted Human Reproduction Act allows for surrogates to receive reimbursement for lost wages. By contrast, Section 12 specifies that a donor cannot be reimbursed for any expenditures in the course of donation, unless specified by the regulations. It then proceeds to leave donors out of the section permitting reimbursement of lost wages.
Cohen explained that many donors necessarily have to travel for a donation, and often, as a consequence, have to miss work. Failing to specifically permit the reimbursement of lost wages places an undue burden on the donor, and, for recipients who choose to reimburse, places them in danger of being found in violation of the law. The guidance document, though, specifically states that Health Canada does not believe that reimbursing a donor for her net lost wages is in violation of the Assisted Human Reproduction Act, even though it is not listed in the Regulations.
Further, the new Regulations provide for specific documentation of all reimbursement items. Cohen thinks, with the new government-issued forms on reimbursements, this is going to lead to a whole lot more required paperwork for surrogates and donors than was previously believed to be necessary.
Worse News. Cohen notes that while the guidance document is helpful to understand and safely work within the current law, the law itself is a problem. Cohen believes that Canada has outgrown the paternalistic law preventing surrogacy compensation and that it’s time to move on to more fitting regulation for assisted reproductive technology. Specifically, Cohen believes that Canadian egg and sperm donors, as well as Canadian gestational surrogates, like their American counterparts, should not be legally prohibited from receiving compensation beyond reimbursement of expenses.
Cohen is not alone. In 2018, Member of Parliament Anthony Housefather proposed a bill to permit compensating gamete donation and surrogacy in the Great White North. Since then, Senator Lucie Moncion has taken up the banner, with proposed legislation this year to strike out the compensation prohibitions.
Moncion’s proposed revisions to the law still include safeguards around the process, such as protections that prohibit any person from inducing someone to be a donor or surrogate if they’re incapable of consenting or if there is reason to believe they are being coerced. Makes sense. That is, after all, one of the concerns — that compensation of a donor or surrogate could lead to economic coercion. But if we can find better ways to protect against coercion, and other concerns, is it so unreasonable that a surrogate or donor receives compensation for their time and effort to help someone else achieve the dream of a child? In the United States, we have clearly answered the question in the affirmative. Perhaps, Canada, our strong and free neighbors to the north, will in time agree.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.