An intended father made a formal complaint to Health Canada. The complaint was passed on to the RCMP. Here is how law enforcement replied.
7 minute read
A Canadian man engaged a Canadian surrogacy agency to help him have a child last year — which he did. The father has no complaints about his surrogate, who was "wonderful," and is delighted with his child, who "fills our days with happiness." But he is concerned by the fact that the agency refused to provide an accounting of what the surrogate's expense money was spent on. Under the terms of the arrangement, he provided the agency with a set amount of money each month for the surrogate's expenses and they disbursed money to the surrogate as receipted expenses arose.
Over the course of several months, he asked the agency repeatedly for a breakdown of what the expenses were — not because he disputed them, or didn't want to pay them, he says, but because he knew that he could be criminally charged under Canada's Assisted Human Reproduction Act (AHRA) if the expenses were not legitimate. Payment of a surrogate is illegal under Canadian law. Those convicted can be fined up to $500,000 and face up to ten years in jail. In the end, however, not only did the agency not provide a detailed listing of what was paid out, they stopped communicating with him altogether, the father says.
He decided to lodge a complaint with Health Canada.
That in itself was not easy. It took the father four email inquiries over the course of 79 days to simply get a response from Health Canada advising him where he could make his complaint. (Answer: the Regulatory Operations and Enforcement Branch of Health Canada: firstname.lastname@example.org, although there is now an online complaint form as well.)
The man lodged his complaint. It reads, in part (redactions mine):
Over the course of my relationship with — and —, I repeatedly asked for detailed information on the type of expenses my surrogate was submitting for reimbursement, so that I could ensure accountability and that I was in compliance with the Assisted Human Reproduction Act. I was told repeatedly by staff of — that they did not provide that information ([they] categorically denied my request saying that they did not release reimbursement information to clients at any time). I spent weeks and months asking for this information, and finally escalated my concerns to —, the owner of the company. After a lengthy phone call with —, I was promised that detailed expense reimbursement information for my surrogate would be provided without restriction. This proved to be lip service - I was not given detailed expense reimbursement information.... I have exhausted all attempts to reach — again (my persistent follow ups have been ignored since — of this year)... This complete lack of transparency and accountability is unacceptable.
I agree that this is unacceptable and concerning.
Apparently, Health Canada agreed, too, because this time, they replied the next day. Later the same month, a Health Canada inspector interviewed the father over the phone. She requested documentation, and the father provided it.
The father periodically checked in with the inspector, but he didn't get clear answers about what was happening with his complaint. Months went by. When almost a full year had elapsed since his first email to Health Canada, the father sent yet another followup, inquiring about the status of his complaint.
He learned then that, four months earlier, his complaint had been referred to the RCMP, the federal law enforcement agency. No one had bothered to tell him.
What's more, the case had been closed.
Using an email address and file number provided by Health Canada, the father contacted the RCMP directly. The father says he was "dumbfounded" by the reply, which I reprint below (slightly redacted):
Thank you for the email Mr. —,
This issue was reported to the RCMP back on —, 2020. A file was opened and some initial investigation was done.... I subsequently spoke with the investigators in — and — before following up with Health Canada on this matter. Unfortunately, at that point in time, the RCMP was not in a position to further the investigation. There were several factors in reaching this decision which I will try to explain.
Based on a ruling from a previous investigation under the Assisted Human Reproduction Act (AHRA), the Government of Canada were instructed to provide a list of expenses that were deemed acceptable for compensation. On June 9, 2020, the new Reimbursement Related to Assisted Human Reproduction Regulations came into force. These Regulations now outline the categories of reimbursable expenditures for donors and surrogates. Prior to this date, there was no clear direction on what was and was not acceptable.
In addition, while there is a Memorandum of Understanding between Health Canada and the RCMP, it relates to the investigation of counterfeit drugs. This agreement does not extend beyond these offences to cover others under the AHRA. This in itself does not mean that the RCMP will not investigate, but rather there is not a pre-established agreement in place.
And while not an excuse, due to financial cutbacks, the RCMP is unable to investigate all crime. Although the AHRA falls within the Federal Policing mandate of the RCMP, it does not touch on one of our current scope of service elements or priorities. I am sure that you understand with limited manpower, the RCMP has to prioritize resources to combat the greatest threats against Canada.
The RCMP is concerned with all Federal Acts and Criminal Code of Canada offences. While a decision has been made not to further this investigation at this time, it does not preclude an investigation in the future. This file has been concluded; however, can be re-opened if the need arrises (sic). If you have any other questions, please feel free to reach out to me at your convenience. I will do my best to provide you with an answer to your concerns.
What are we to make of the response? I'm not easily surprised, but this letter did catch me off guard. The candour about underfunding and priorities was almost refreshing. But what does it mean for people using assisted reproduction in Canada?
Alana Cattapan, an assistant professor of political science at the University of Waterloo, points out that even before the regulations on expenses came into force in June, Health Canada's guidance document made it clear that only receipted expenses could be reimbursed. "The agency should have receipts and declarations about the expenses in their files," she says.
Cattapan also finds it surprising that Health Canada sent the complaint to the RCMP as its first line of action. The minister, she says, can require someone who "must maintain a record in relation to a reimbursement" to simply provide those records. "They developed a compliance and enforcement strategy for the AHRA that puts checking these things out squarely in their hands," she says. "My understanding is that the first order of business in the case of such a complaint would be for the minister to make a request for these records to follow up on the complaint."
The fact that the events in question took place before the regulations came into force does complicate matters. It could be that, given that there weren't clear rules in place about what was and wasn't allowed, the RCMP simply felt there wasn't a good chance of a conviction, says Erin Nelson, a law professor at the University of Alberta.
"But we do have this law, and if Health Canada actually took the time to investigate and determine that there was something to forward to the RCMP, you would hope there would be some capacity to address that," she says. "It is a little staggering."
Karen Busby, a law professor at the University of Manitoba, however, says the response is "not that unusual." Police forces often make the decision not to prosecute a certain kind of crime — like possession of marijuana, she says, or sex work. Also, the RCMP were probably correct not to lay any charges before the rules had been clarified. "If the rules are not clear, you can't get a criminal conviction," she says.
Busby, who is not a fan of the law, is not troubled by the fact that it may effectively go unenforced. "I'm fine with the RCMP not investigating."
I don't love the law either, but, as I've said before, it makes me nervous that we have a law but also don't. "It seems that there's no real interest on the part of the federal government in investigating potential instances of violations of this act," says Nelson.
Or, as Cattapan puts it, it feels like "open season on the act."
Complaints regarding the AHRA can be sent to the Regulatory Operations and Enforcement Branch of Health Canada: email@example.com
Or use this online complaint form
Alison Motluk. Anatomy of a surrogacy. Hazlitt. 2017.
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