Posted By Chris Laliberté
On February 6, 2016, the McGill Journal of Law and Health hosted its 9th annual Colloquium to explore the legal framework surrounding assisted reproduction practices in Canada. The controversial issue brought together doctors, lawyers, and professors to discuss the impact of the Assisted Human Reproduction Act (AHRA) and the criminalization of third-party reproduction on Canadian families.
Panelists for the day included fertility law practitioners Sara R. Cohen and Sherry Levitan, doctors Arthur Leader and Neal Mahutte, and professors Margaret Somerville and Françoise Baylis.
Me Sara R. Cohen opened the discussion with a practical, what she called “on the ground”, perspective of the issue through her work with clients seeking to start a family through surrogacy. She spoke about how in her work with Fertility Law Canada, she aims to help hopeful parents-to-be overcome the complex legal hurdles that mark the track from the pre-conception planning stage to the finalization and execution of the surrogacy contract.
Me Cohen argued that the state of the law in Canada, in particular the criminal sanctions imposed pursuant to s. 6(1), 6(2), 6(3) and 7(1) of the AHRA, contravene the regulatory purposes of protecting women who wish to provide surrogacy services, and families who have chosen surrogacy as the preferred, and in some cases, only means to start a family. For example, the s. 6(1) prohibition on payment has created a spirit of secrecy due to fear of harsh penalties under the law, says Me Cohen. Although she admitted to no knowledge of charges brought against women offering surrogacy services or the families who hired them, the practitioner emphasized that the threat of enforcement alone causes harm through engendering reproductive tourism and a lack of medical safety from deregulation.
Professor Margaret Somerville then took the podium to defend the Canadian criminal prohibitions as a means of preventing the commodification of human lives and bodies. She first contended that the current debate suffered from an error in perspective: the needs of the parents are placed at the forefront while the best interests of the child are seemingly left out of consideration. Professor Somerville went on to claim that the child, in the context of a surrogacy contract, is treated as a product rather than as a party. Her reasoning framed the discussion as a conflict between the rights of a child to a happy life and the rights of adults to be parents. She argued in defense of a child’s right to the equal freedom afforded by a natural birth through the “genetic lottery” rather than the predestination of a genetic design, which she likened to manufacturing a product.
Professor Somerville also argued that the decriminalization of surrogacy services would threaten the safety of socioeconomically disadvantaged women, who are most vulnerable to exploitation. She compared the power dynamics to those involved in prostitution, making the claim that consent to these arrangements cannot be free and enlightened when a woman in a desperate situation has to choose between offering her body or starving. Me Cohen would rebut this point during the Q&A period, arguing that the situation is not so bleak in the Canadian context, and that proper regulation would advantage and empower women in our healthcare system, not subject them to exploitation.
Professor Françoise Baylis closed out the first half of the day with a critical look at what the legislation states and, with greater scrutiny, what it fails to say. In her presentation, she argued that although the legislation, as it is written, clearly defines the state of the law, Health Canada’s reliance on an evasive interpretation of outdated legislation allows for uncertainty due to voluntary omissions where clear regulatory guidelines could dispel any need for quasi-legal circumnavigation. A defined regulatory framework would allow purchasers and providers of surrogacy services to understand how best to proceed without risks of sanctions. Further, the inaction of Health Canada in enforcing the current legislation only creates greater confusion as to what is and is not permitted, or, what will be allowed in spite of the statutes.
Dr. Arthur Leader, a specialist in fertility treatments, opened the second half of the Colloquium with a brief, but insightful comparison of the legislation regarding in vitro fertilization (IVF) and surrogate pregnancies in the UK and in Canada. His presentation holds the UK model as an example for what fertility medicine regulations could look like in Canada after substantial revision. The Canadian model could better serve its people by lifting or loosening restrictions on surrogacy and IVF research and treatment, which would allow the Canadian healthcare community to drive innovation in the field and give Canadian citizens domestic access to the services they need, rather than forcing them to travel abroad.
The Q&A session that followed, co-chaired by Dr. Leader, Dr. Neal Mahutte, and Me Sherry Levitan, touched on a broad spectrum of issues faced by legal and medical practitioners in the field of assisted reproduction. The panel responded to concerns ranging from the framework for IVF funding, to the lack of statutory guidance in disputes over the ownership of frozen embryos, to the effects of donor anonymity on a child’s rights to access their medical history.
Overall, this year’s colloquium has made clear that the legal framework surrounding third-party reproduction in Canada remains oblique at best. As legislators continue to grapple with ethical concerns and struggle to keep pace with advances in medical technology, the absence of clearly defined regulations poses many challenges for Canadians in need of these services to start a family. Until the government addresses this gap in the law, collaboration between fertility doctors and fertility lawyers will continue to prove invaluable in granting these families access to the treatments and services they require.
To join in on the discussion, make your voice heard on the MJLH website, Facebook page, or Tweet @McGill_JLH. For those interested in getting involved with fertility law, Dr. Baylis invites passionate writers to contribute to her website, Impact Ethics. For law students interested in the practice of fertility law, Me Sherry Levitan invites you to contact her about a student position with her firm in Toronto.