Canada's Assisted Human Reproduction Act (AHRA) was passed in 2004. Among other things, it outlawed payment for gametes and surrogacy, while allowing reimbursement of expenses. Today, the line between those two became law.
For spectators in the long-running saga of Canada's Assisted Human Reproduction Act (AHRA), today is a big day. Sixteen years ago, the law was passed, and today, a critical piece of that law — the regulations about what can legally be reimbursed to surrogates, egg donors, sperm donors and embryo donors — finally came into force.
Let's pause for a moment and reflect on how long that's taken. 2004 was time before YouTube, a time before Twitter; "TheFacebook" was a newborn that year. It was a time when we were still worried about Raelians cloning babies (and that worry helped shape this law), a time when we were still fighting to legalize same-sex marriage in some of our provinces.
Still, better late than never. It is important to have these regulations for a few key reasons. First and foremost, the law has criminal penalties — you can be sent to jail for 10 years or be fined $500,000 — yet without regulations it is legitimately hard to know how to stay on the right side. Was it criminal to pay your surrogate's telephone bills? Gift her a visit to a nail salon? Would-be parents, lawyers and agencies worried about these things. Some Canadians chose not to seek treatment in their own country.
As it happened, there was only ever one prosecution and it wasn't about a gift card. Once it was clear that the law would not be widely enforced, it became commonplace for families to use the lack of regulations as a way to circumvent it — paying a surrogate outright, for instance, but pretending they were reimbursing expenses. (For more on how that worked, see "Anatomy of a Surrogacy.")
Another reason it was important to get regulations in place was that egg donors, sperm donors and surrogates were, in some instances, being persuaded by money in exactly the way the law was intended to prevent. Worse, the murkiness and lack of enforcement led to a grey market in reproductive services that put many at risk.
More than once over the years, rumours circulated about draft regulations fully written and just waiting to be rolled out. But year after year, nothing materialized. It wasn't until October 2018 that we finally saw some in draft form. (For more on those, see "Fourteen-and-a-half long years later... ." )
In contrast to the deep work that preceded the crafting of the law — the four-year Royal Commission on New Reproductive Technologies, followed by years of evidence-gathering by parliamentary and senate committees — these regulations were finalized with almost no public scrutiny. The health committee did not formally examine it. No witnesses were called. This was concerning — and odd. (For more about why, see point "7" in "Seven things I learned at Health Canada's consultation.")
The regulations which today come into force do bring some clarity. But they also leave questions. There are discrepancies, for instance, between what the law says and what the government's guidance says. There are also issues about who can authorize some of the reimbursable items. (For more on that, see "Regulations rundown.") But the biggest question now, for me, is exactly how these Reimbursement Related to Assisted Human Reproduction Regulations will be enforced — how commonly, how thoroughly and how knowledgeably.
I'll let you know what I find out.
Dave Snow. Assisted Reproduction Policy in Canada: Framing, Federalism, and Failure. 2018.
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