In 2004, the Assisted Human Reproduction Act was passed in Canada. The law prohibited some things and allowed others — but only under certain conditions. For all those years, no one knew what those conditions were. Now we do.
Apologies for jumping into yet another Canadian policy story, but this one can't be ignored. Canadians have been waiting a very long time for these regulations. The law came into force way back in March 2004. To put that into context, I had two kids under age three at the time, and now they’re looking at universities.
For all that time, Canadians were left on their own to figure out what was legal and what was not. We knew that outright payment of surrogates and donors was prohibited. But we also knew that some reimbursement would be allowed. Some people were nervous about paying any expenses until it was spelled out in the regulations. Others were bold, and hoovered up every receipt a surrogate or egg donor could lay her hands on, in the hope that they would add up to somewhere near the amount that had in fact been handed over. These new regulations aim to put an end to this grey market of ours.
Decisions on reproduction in this country have a habit of being released at awkward times — right before a major holiday, for instance, or on a Friday afternoon. So it was again. At 2pm last Friday, Health Canada held a press briefing. They said the newly-proposed regulations would be "embargoed." In the science world, that means journalists are trusted with the information in advance, so they can read up and ask informed questions. Not so in Health Canada's world. Not only did they not give us access before the media call, the links to the new info remained broken for a few hours beyond.
And what we did learn during the briefing did not inspire confidence. The two spokespeople talked circles around questions about why we're only seeing these regulations now and what on earth had been happening in the interim. When asked whether anyone had ever been convicted under the law, and if so, whether it had been a provider or a payer, one of them, Health Canada's chief medical advisor, replied that the one person who had been convicted had been a provider. That is embarrassingly incorrect. It suggests that a surrogate or egg donor had been charged. In fact, providers are not subject to prosecution under the Assisted Human Reproduction Act (AHRA). The conviction was for paying egg donors and surrogates outright for those services.
I don't pretend to understand all the implications of these new regulations. There is a lot there, and like others, I will need time to fully digest them. Below, however, I offer an overview of the parts on reimbursement and my early thoughts on what they might mean on the ground.
Long Time Comin’
The regulations clearly set out what you can reimburse
Health Canada says it stands by the dominant principle in the Assisted Human Reproduction Act (AHRA): that commercializing human reproductive capabilities is dangerous and unethical. They want to allow limited reimbursement, however, so that donors and surrogates are not left out of pocket.
Given that, the new regs on reimbursement are as expected. Expenses must be directly related to the donation or the surrogacy. A surrogate or donor can be reimbursed for mileage to and from a related medical appointment, at rates posted on the Canada Revenue Agency's website, or for cab or train or airfare, for instance. But they can't be reimbursed for things like car repairs, oil changes, monthly car payments or filling the family gas tank. This will be a surprise to no one but a disappointment to many.
Receipts and declarations must accompany any reimbursements. "It's not that different from what I would be expected to submit here at the university," says Francoise Baylis, a bioethicist at Dalhousie University, who has been calling for regulations since the law first came into force, and who says she is pleased with what Health Canada has come up with regarding reimbursement. "I think it's reasonable."
Allowable categories include travel, care of dependents, counselling, legal help, drugs, medical supplies, insurance and cost of medical records. Notably, the regulations say there are no caps on what can be reimbursed.
Consistent with the law, only surrogates can be reimbursed for lost income. Some people, and I am among them, think that is unfortunate. Leia Swanberg, CEO of Canadian Fertility Consulting, an agency, points out that egg donors need to attend several appointments during the process, and "very few women live next door to a clinic." Indeed, many drive long distances to participate. (Swanberg was the person convicted under the AHRA, for paying multiple egg donors and surrogates without accurate receipts to back up the payments.) Sara Cohen, a Toronto fertility lawyer, says that under the new regulations, it would be a criminal offence to reimburse an egg donor — even one who had been advised by her doctor to stay near her clinic during a donation — for lost wages.
Egg donors can also sometimes have acute health problems following donations, occasionally requiring time off work or even hospitalization. It does seem to me unfair that they should have to bear the cost for that, even by using up their own sick days. It also seems a missed opportunity to gather data on just how often this sort of thing happens. Couldn't Health Canada make doctors whose patients fall ill following the procedure file paperwork on the adverse events?
Cohen is equally troubled that sperm donors are ineligible for wage replacement. Some of them also need to travel, she says. Cohen calls the decision to exclude donors "discouraging."
As for surrogates, it appears that reimbursement can only be made for wages forfeited during the pregnancy, not after -- something that alarms Sophie Gil (not her real name), a former surrogate. She had a complication during her surrogacy, and ended up in hospital. The babies were born the day after she was admitted, but she remained ill in the ICU for some days afterward, and even after being discharged, she faced multiple appointments before getting back to full health.
Cohen points out another discrepancy: that legal fees can be covered for egg and sperm donors and for surrogates, but not for embryo donors. The regulations acknowledge embryo donation and allow for reimbursement of storage and shipping fees but make no mention of legal fees. "So it's not by accident," Cohen concludes. But families thinking about donating their embryos to other people need legal advice too, she says.
Inspectors will check compliance
Every regulatory framework needs both rules and a way to enforce those rules. "There's a plan for enforcement, which we haven't had before," says Baylis. Until we see it in action, it's hard to say whether it's an effective plan, she says, but it's important that it exists.
Specifically, any person who reimburses expenses must keep the receipts for six years. During that time, inspectors can enter any place they think necessary to check whether people are complying or not complying. According to the guidance accompanying the regulations, inspectors will have the power to seize things — presumably items like computers and bank records, along with required receipts — and if people want them back, they can apply to a provincial court judge. The wording of all this is a little intimidating.
Agencies can expect to come under such scrutiny. But intended parents (IPs) may find themselves interrogated too. When the RCMP investigated Swanberg, they got client names through her office files and then contacted them directly. "That can be scary for IPs and surrogates," says Swanberg. It's not clear whether doctors' offices or lawyers' offices will be subject to the same kind of inspection, given client confidentiality.
Heather Shapiro, a fertility doctor at Mount Sinai Hospital in Toronto and a past president of the Canadian Fertility and Andrology Society, says that the CFAS position is clear. "We think it should be decriminalized," she says. "This should not be a crime." But in the meantime, she says, any clarity is welcome.
Cohen calls the regulations "punitive." Like Shapiro, she believes in decriminalization, but fears the country just moved in the opposite direction. "Now people could be successfully charged," she says.
Gil wonders how inspectors will even be able to identify surrogates and IPs. Many arrangements, like hers, are made online. Her IPs used no agency. The embryo transfer was done outside the country. "How are they going to know who we are?" she asks.
Her question made me pause. If I've learned one thing in covering this space over the years, it is that people will go to great lengths to circumvent these prohibitions. So what will the new strategy be? I imagine people will strive for ways to stay under Health Canada's radar. Perhaps IPs will be motivated to use non-domestic agencies or no agency at all. Perhaps Canadian agencies will move offshore. Gil predicts people will turn to mailed envelopes of cash. "ExpressPost with a tracking number," she says. "This is not going to stop surrogates from getting paid."
I'm not a huge fan of this particular law. But I do believe in a law-abiding society. Health Canada gravely erred in leaving the Assisted Human Reproduction Act incomplete and unenforced for so long. It gave people years of practice getting around it, and that expertise will make it all the harder to bring the law fully into force.
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