Surrogacy and gamete donation exists in a legal grey area in this country. Guest author Leia Swanberg, founder and owner of Canadian Fertility Consulting, or CFC, a prominent surrogacy consulting agency, explains why that’s got to change.
Almost four years ago today I walked into a courtroom and accepted a plea bargain that would solidify my agency’s status as the first and only agency to be charged and subsequently penalized under the Federal Government’s Assisted Human Reproduction Act (AHRA), a woefully outdated and unclear piece of legislation introduced in 2004 to govern Assisted Reproductive Technology in Canada.
To provide a bit of background, I run a fertility consulting agency whose mission is to help create families for couples and individuals who have difficulty or are unable to conceive. We help them explore alternate methods of building a family, such as through surrogacy and gamete (sperm and egg) donation.
The major challenge in running this agency is the uncertainty of the AHRA, an altruistic system of donation and surrogacy that prohibits the purchase of ova or sperm (gametes), or the compensation of a donor or surrogate.
This means that, just to give one example, even to send flowers to a surrogate could expose intended parents (IPs) and agency staff to criminal liability and penalties. Expenses meant to cover costs directly related to the pregnancy are a grey area, and currently, any perceived breach could result in the conviction of an indictable offence. These come with a fine of up to $500,000, a jail sentence of up to 10 years, or both.
That’s what happened to me, when the RCMP raided my home and office back in February of 2012. I did not have receipts for every expense reimbursed to the surrogates and donors. My company was charged for this and for taking referral fees. In December 2014, the prosecutor offered a plea bargain and my company, Canadian Fertility Consulting, pled guilty to two regulatory offences and paid a $60,000 fine.
I really hoped things would change following the investigation. I really hoped that despite everything that I went through — not to mention my staff and clients — that we’d now finally have movement to clarify such an imprecise law. Yet while there’s been a lot of discussion around amending the Act, there’s been little action to date.
That’s why I, along with Quebec MP Anthony Housefather and more than a dozen notable lawyers, doctors and activists have now taken our message to Parliament Hill to meet with other Members of Parliament and bring the issue to the forefront. Specifically that every Canadian should have the right and ability to have a family without fear of legal prosecution.
I know that for many Canadians, there is a lot of confusion and uncertainty around surrogacy and gamete donation, particularly since Canada’s laws are so different to those in the U.S., where compensation happens regularly (and legally). I have personally acted as a surrogate twice, and an egg donor six times.
I want to address some of the most common myths about surrogacy and gamete donation that I hear on a regular basis:
Myth: Very few people require surrogacy or gamete donation in Canada.
Fact: One in six Canadians struggle with infertility, with 15 per cent of the population looking to alternative means of reproduction to build their family. And that figure doesn’t include those who are unable to conceive children because of sexual orientation, genetic diseases, gynecological issues, loss of fertility due to cancer — the list goes on. The demand for surrogates is increasing, not decreasing, and it’s in everyone’s best interest for Canada to introduce clarity into our laws as soon as possible.
Myth: Legalizing paid surrogacy would open the door to exploitation of women and children.
Fact: Here in Canada, the law is hindering women more than helping them, because it’s not clear what is actually legal and what is not.
In fact, by restricting the services offered by agencies and clinics, donors and surrogates are left more vulnerable. For example: due to the grey area surrounding allowable expenses, many IPs, donors and surrogates — fearing legal repercussions — turn to the internet to find each other rather than use an agency. When this happens everyone is vulnerable and can be taken advantage of without recourse. Decriminalizing payments to surrogates and donors will reduce this vulnerability while increasing the number of donors, making this option of family building more accessible to Canadians.
Related Podcast Episode: The Secret World of Infertility
Myth: Surrogates are predominantly women on government assistance who’s only motivation is financial.
Fact: Surrogates are women between the ages of 21 to 40. They have a median family income of $46,000 annually and are mothers or 2 to 3 children on average. They are women who have made informed decisions to help another person or family, and are so valued and supported in doing so. They are rarely women participating in government assistance programs. In fact, 98 per cent of Surrogates interviewed in 2016 by a private agency stated they agreed with the altruistic surrogacy model and did not have financial motivation in the slightest. Surrogates noted reasons such as family connection, background with fertility issues, professional inclinations, being a member or ally of the LGTBQ community, soul calling and life fulfillment.
Canada is seen by the world as a beacon of tolerance and acceptance. It’s time for Canadians to rally their MPs to support a bill that will repeal the current provisions of the AHRA and support the implementation of regulations that will create a structured payment regime for surrogates and gamete donors.
Want more on surrogacy?
A Gay Dad and the Surrogate Expecting his Second Child
My Sister, The Surrogate
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