In 2018, we campaigned against MP Anthony Housefather’s proposal to amend the Assisted Human Reproduction Act with the introduction of Bill C- 404. This particular Bill did not pass, but there have since been two private Senate member Bills introduced (S-216, S-202), both with similar intents to decriminalize payment for sperm, eggs, and surrogacy – as well as to decriminalize payment to intermediaries who are involved in donor conception, and to allow advertising to seek out egg and sperm donors. See our Legislation page for more information. We continue to be opposed to the commercialization of donor conception in Canada and abroad.
What was Bill C-404 about?
On the 27th of March 2018 Housefather held a press conference surrounded by “fertility doctors, lawyers, agencies, surrogates, and intended parents” to announce plans for a Private Member’s Bill that would decriminalize compensation for sperm and egg donors and surrogates. There were no donor-conceived people present.
Section 2 (a) of the Assisted Human Reproduction Act (S.C. 2004, c. 2) declares: “the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use.”
The Act’s present form maintains that surrogates and those donating gametes cannot be paid, but can be reimbursed their expenditures “in accordance with the regulations,” as follows:
Section 6 (1) of the Act states:
“No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.”
Section 7 (1) of the Act states:
“No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or person acting on behalf of a donor.”
Section 7 (3) of the Act states:
“No person shall purchase, offer to purchase or advertise for the purchase of a human cell or gene from a donor or a person acting on behalf of a donor, with the intention of using the gene or cell to create a human being or of making it available for that purpose.”
A person who contravenes sections 5-7 and 9 – which outlines the age at which it is appropriate to be a gamete donor – of the Act is guilty of an offence and is
(a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or
(b) is liable, on summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both.
Why were we opposed to Bill C-404?
DONOR-CONCEIVED PEOPLE WERE NOT ENGAGED IN BILL C-404
What MP Housefather says:
MP Anthony Housefather claims that “the vast majority of surrogates, donors, intended parents, children born of donation and the agencies, doctors and lawyers working to assist them agree with one thing: the current law needs to be revised.”
What we say:
Several donor-conceived individuals have communicated with MP Housefather and have expressed concern that donor-conceived people (DCP) were not meaningfully engaged in the development of Bill C-404. Engagement of DCP should be a priority in the development of any amendments to the existing Act, given that Section 2 declares “the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use.”
Yes, donor-conceived people agree that policies need to be reformed – just not in this way. It is difficult to study the views and attitudes of donor-conceived people, as it is difficult to conduct any small-N case studies. However, studies consistently suggest that the majority of donor-conceived people are concerned by laws that protect the anonymity of donors.
For example, in a study by Mahlstedt et al., 57.7% of donor-conceived people believed that only identity-release sperm donation should be practiced, 52.9% would not use a donor themselves, 95% did not believe that sperm donation is equivalent to donating blood, and 92.9% did not believe that donating gametes is the same as donating organs. For more research click here.
Considering this, a comprehensive regulatory framework should be put in place. Payment for gametes does not contribute to a comprehensive framework that protects donor-conceived people.
EXISTING CRIMINAL PENALTIES ARE NOT TOO HARSH
What MP Housefather says:
Existing criminal penalties under the Act are too harsh.
What we say:
Section 2 (f) of the Act states the “trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition”
The original drafters of the Act saw the ethical implications of commercializing gamete donation and surrogacy. The potential for exploitation, and other harmful ends, has not disappeared.
Furthermore, due to our country’s governmental framework, criminal penalties are an effective way to regulate this facet of the fertility industry. According to Professor and Canada Research chair in Bioethics and Philosophy at Dalhousie University Françoise Baylis and Assistant Professor at the Johnson Shoyama Graduate School of Public Policy, University of Saskatchewan Alana Cattapan,”[O]ur Constitution [is] the only mechanism available to the federal government to enforce a ban on payment.”
Furthermore, the DCAC acknowledges that compensation for expenditures is not a criminal act and does not advocate for it to be. The idea that criminal penalties are too harsh has no basis in material reality. If it did, there would be several individuals charged under the Act or a decrease in the use of a service such as surrogacy would be apparent.
However, to date, there has only been one person charged under the Act and she does not have a criminal record. Furthermore, between 2011 and 2015 babes born to gestational surrogates in Canada increased by 145%.
IMPORTED SPERM ALREADY MEETS STRICT SCREENING CRITERIA
What MP Housefather says:
Canadians are being put at risk from imported sperm because it does not meet our health and safety requirements.
What we say:
In July 2000, Health Canada released the Health Canada Directive entitled “Technical Requirements for Therapeutic Donor Insemination.” This directive created more stringent donor selection criteria and testing requirements including:
“[A]ll prospective donors must be between 18 and 39 years of age with no known hereditary or genetic disease or any serious disability and must have good quality sperm. They must all complete an extensive questionnaire, pass a physical examination, satisfy the rigorous standards for semen analysis, have a risk-free medical and family history, and undergo infectious disease and genetic testing. . . . Canada now has the most stringent requirements worldwide for the screening and testing of semen donors.”
WOMEN’S BODIES ARE NOT CRIMINALIZED UNDER THE CURRENT LAW
What MP Housefather says:
The current law is “criminalizing” women’s bodies.
What we say:
There is no criminal penalty for being a surrogate or donating gametes. It is legal to be reimbursed for expenses. Section 6 of the Act states that it is simply not legal to be compensated beyond that.
SAME SEX PARTNERSHIPS AND SINGLE PARENTS ARE ALREADY PROTECTED UNDER THE LAW
What MP Housefather says:
The Assisted Human Reproduction Act (S.C. 2004, c. 2) is based on outdated ideas from the 1980s before LGBT rights were recognized therefore it does not protect same-sex couples.
What we say:
The Act is based on previous work done by the Royal Commission on New Reproductive Technologies. This Commission began in 1989 by Prime Minister Brian Mulroney’s Conservative government and operated under commission chair Dr. Patricia Baird. In 1996, the government began trying to regulate assisted reproductive technology (ART), but it was not until 2004 that they succeeded with the passage of the Assisted Human Reproduction Act (S.C. 2004, c. 2).
The Act which was penned in part by Réal Ménard, a gay member of parliament from Quebec, was created with input from several LGBT stakeholders. One such stakeholder was the Lesbian Mothers Association of Quebec. They lobbied and eventually succeeded in getting a clause placed in the original bill that states:
“Persons who seek to undergo assisted reproduction must not be discriminated against, including on the basis of their sexual orientation or marital status”.
The original version of the bill was contentious among many LGBT advocates due to Section 10, which originally stated:
“no person shall, except in accordance with the regulations and a license, obtain, store, transfer, destroy, import or export a sperm or ova…for the purpose of creating an embryo”.
At the time, many lesbians who did not want to access sperm banks were considering using sperm from that of a friend, often a gay man; they, therefore, objected to the prohibition on private gamete donations. The Lesbian Mothers Association argued that Section 10 (3) “[implied] that for those of us who choose to do at-home inseminations… we would be acting illegally.”
However, Section 10 was repealed in 2012.
Maintaining that the current Act is discriminatory against the LGBT community is a stark misrepresentation of the work done by LGBT advocates during its creation and the Act’s evolution as legislation.
