Changing the law to allow payment for surrogacy is fraught with complications

Paying for certain reproductive services in Canada — including egg donation, sperm donation and surrogacy — is currently illegal, but there are signs that may change. Prime Minister Justin Trudeau has said it's time to discuss the prohibition on paying surrogate mothers, and Liberal MP Anthony Housefather is set to table a bill that will decriminalize payment.

And while we embark on these conversations, it's important to take note of some of the misinformation circulating around this issue.

For starters, it has been suggested that "assisted human reproduction is the one area of law where we are still criminalizing women's bodies" and thus, the law should be changed.

This statement evokes abortion (an area of law where women's bodies were historically criminalized) to implicitly suggest that by putting any limitations on reproduction of any kind, the Assisted Human Reproduction Act — the law that prohibits paying for these services— limits women's reproductive rights. This is simply not true.

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Women are freely able to participate in both egg donation and surrogacy, and the law is written explicitly to ensure that even if payment occurs, egg donors and surrogates are not subject to criminal sanctions. The only limits are on those who pay for sperm or eggs or surrogacy, or receive payment for brokering these deals, and these provisions have only been used (in one case) to address blatant violations of the law.

The existing law also includes provisions to ensure that women are not out of pocket in helping others build their families, meaning that they can be reimbursed for costs associated with their egg donation or surrogacy. After a long delay, Health Canada is in the midst of developing the regulations that would make clear which expenses can be reimbursed and how they can occur. The draft regulations are scheduled to be published in the fall of 2018 and finalized a few months later.

Consenting to risky procedures

Creating a situation in which women are paid for services — which blurs the line between patient and contractor — is unlikely to establish more desirable outcomes for the health of egg donors and surrogates in Canada, especially given that women might be more likely to consent to riskier interventions when high payments are involved. Prioritizing health and safety is not an impediment to choice, and we should not mortgage Canadian women's health to increase the number of donors and surrogates in the short-term.

One argument often repeated in this regard is that in an otherwise extremely expensive and largely private field of medicine, egg donors, surrogates and sperm donors are the only ones who are not paid. But this is true in other areas where we donate bodily tissues — transplant surgeons are paid, but not donors, for example. As well, perhaps we should be raising concern about the high costs of reproductive technologies, rather than accepting the expansion of a lucrative commercial market in reproduction.

As for people who want to build their families with the help of a sperm donor, or egg donor, or surrogate, eliminating the prohibitions on payment will likely further limit access. The use of reproductive technologies is already cost-prohibitive for many, and the additional burden of paying someone will further limit who can participate. There has been some discussion of future regulations to establish caps on payment, but attempts to set a price ceiling for egg donation in the United States was met with a lawsuit alleging price-fixing, and as a result, the proposed cap could not be implemented.

If we want to increase the number of donors and surrogates in Canada to increase choices in family-building, we should try to do so without increasing costs to intended parents. Better options include letting Health Canada clarify the existing law regarding the reimbursement of expenses, addressing stigma around sperm donation and working with the provinces to ensure that family law around the roles and responsibilities of intended parents, sperm donors, egg donors and surrogates is clear.

The idea that the prohibitions on payment criminalize women's bodies or limit choice is a rhetorical turn that attempts to reframe payment for surrogacy, egg donation and sperm donation as a matter of reproductive rights. But the right to do what you want with your body is still there; the only restriction is on payment. There is much we can do to help Canadians build their families within an altruistic framework, while upholding our commitments to reproductive rights and to advancing women's health.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.