The law says you can't pay a surrogate or donor in Canada, or help someone else to pay. But exchange the money outside Canada? No problem.
Last week, the Canadian Fertility and Andrology Society (CFAS), a body that represents fertility specialists, held their annual meeting in Ottawa. Once again this year, they generously allowed me to attend as a member of the press.
It has been a momentous year for fertility in Canada. As any regular reader of HeyReprotech will know, our law on assisted human reproduction was finally fully rolled out, with the completion of regulations that had been pending for 15 years. They will come into force in 2020.
You'd imagine, then, that a meeting of all the major players in the field would have focused on this landscape-altering event. Maybe there'd be a session on how safety testing might change the availability of donors, or thoughts on how best to maintain surrogate expense records to keep yourself on the right side of the law. Sure, maybe there would be a keynote address raging against the unreasonable control by government of an industry so willing to regulate itself.
Well, that's not quite fair. There were two sessions, both led by University of Ottawa law professor Amir Attaran, which did address regulation.
One was called "Bringing a legal challenge: Why the prohibition on paid gamete donation and surrogacy is probably unconstitutional." (Attaran opened the talk by saying the title was in place before the regulations, and he joked that attendees were the victims of false advertising.)
In any case, it is his other presentation that I write about below. It was a small, ticket-holders-only, roundtable discussion, called "The New Regulations under section 12 [reimbursement of expenditures] of the Assisted Human Reproduction Act. Where do we go from here?"
And the short answer is: out of the country. At least for key bits. Read on.
Canadians have long been familiar with what feels like a contradiction in our law: it is illegal to pay a donor in this country, but it is legal to pay a Canadian distributor for frozen eggs or sperm that were paid for in the US and shipped here. There is correspondence from Health Canada floating around confirming that this is okay.
But why not go one step further? asks Amir Attaran, law professor at the University of Ottawa. Have the donor in Canada, have the surrogate in Canada, but just don't pay them in Canada. "Pay them through an intermediary in another jurisdiction where that sort of thing is legal," he says.
According to Attaran, the law is very clear about what it prohibits: the purchase and the facilitating of a purchase on behalf of a donor or surrogate. A bank or distributor can sell an egg because, he says, it's not facilitating on behalf of a donor. "It owns the egg at that point," he says. In a separate transaction, the bank purchased the egg, and once it has title over the egg, then it is not capable of doing anything on behalf of its source — the donor — because that source is out of the picture.
So... if the offence is simply that of purchasing, you can have the good or service in question change hands in Canada as long as the purchase transaction is elsewhere, he says: "I think it's an obvious solution."
And how might one do that? Well, open a US bank account, put some money in that bank account, have the donor or surrogate open a US bank account and move the money from one to the other. The contract governing that sale, of course, would have to be drawn up under the law of a jurisdiction that allows it — a California lawyer, for instance, under California law.
Setting up a US bank account can be a hassle. But maybe even that is not necessary, says Attaran. Maybe the lawyer in California has a trust account. "What's to prevent that lawyer from receiving your wire transfer?" he says. The egg donor also has a US lawyer — a different one, also with a trust account — and the money moves from one lawyer's hands to another lawyer's hands. The transaction is thus completed under California law.
"It's entirely legal," says Attaran, "and the two people who are the principals do not need to be outside of Canada."
Not everyone is comfortable with this scenario. Some lawyers are concerned that the connection between retrieval, say, and payment, may be too close to be deemed legal. "I would use caution," says Sara Cohen, a Toronto fertility lawyer. More safe would be to fly your Canadian donor to the US for retrieval, and leave Canadian banks out of your transaction.
Attaran says that when you compare the Assisted Human Reproduction Act to other laws, it's clear that it only applies within Canada's borders. The Corruption of Foreign Public Officials Act, for instance, is expressly written to extend the jurisdiction beyond Canada's territorial jurisdiction — something called "universal jurisdiction." That means it would prohibit payments where even an element of the transaction takes place in Canada. The AHRA is not written that way. Lawmakers "probably never turned their minds to it," he says.
Attaran's advice to Canadian fertility lawyers, when asked to be involved in cases like these, is to partner up with a foreign lawyer. To avoid criminal liability, make sure the transaction goes through them. "It doesn't particularly matter which jurisdiction abroad you pick," he says, "so long as you're not so foolish as to pick one where it's also illegal."
Attaran says it's time to dispel the "mythology" that you cannot possibly pay Canadian donors or surrogates. "That's completely wrong," he says. "You can. You just can't pay them in Canada."
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