The long-awaited regulations to the Assisted Human Reproduction Act came out in June. This week, some thoughts on the reimbursement regs.
Apologies to those of you who do not find the minutiae of Canada's regulations riveting. For those of us who have waited a decade and a half for resolution on this, however, it's been a rather exhilarating year.
The new regulations address four separate areas: reimbursement, safety of sperm and eggs, compliance, and consent. On occasion, I will visit one of these categories to say a few words. Below, some observations about the regs on reimbursement.
In Canada, you can't pay surrogates or people donating eggs, sperm and embryos. But the law makes clear that you can reimburse them for expenses, so that they won't end up actually losing money.
In the fifteen years between the passing of the law and the creation of the regulations, there was much disagreement about what that meant on the ground. The conservative interpretation was that a person could be paid back for expenses that were very clearly related to the process. If an egg donor took a taxi to a clinic to have her eggs retrieved, for instance, or if a surrogate bought a pair of maternity jeans, no one would have disputed reimbursement.
But what if a surrogate ate extra food because she was pregnant? Could she be reimbursed for groceries? What if she was on bedrest and wanted to watch TV? Could she be reimbursed for Netflix? What if she needed a car to get to appointments but her old one died and she couldn't afford the down payment on another? Could the intended parents cover that? What if an egg donor was hospitalized and didn't earn any money for a few days? Could IPs help her out? Questions like these put intended parents in a very difficult spot.
And it wasn't only that, of course. The absence of regulations meant that some people used reimbursements as cover for outright payment, in direct contravention of the law.
Well, the regulations on reimbursement are now here — they go into force on June 9, 2020 — and at least some of murk has been cleared.
They are, on the whole, unsurprising. As expected, they allow most of the expenses that are directly associated with the process, including: travel, parking, meals, accommodation; care of dependents (including pets); counselling; legal fees; drugs and devices; services that have been prescribed; insurance; medical records.
However, there are interesting bits. Allow me to draw attention to a few.
There are important discrepancies between the regs and the draft guidance
Sara Cohen, a Toronto fertility lawyer, points out that the regulations and the draft guidance do not always say the same thing. This is important because although Health Canada is indicating in the guidance what its current interpretation is, that interpretation does not have the force of law. Cohen's position, and I agree, is that these points should be clear within the regulations themselves. If these issues can't be regulated as desired under the law as it stands, the law should be amended.
One example of such a discrepancy is legal advice for embryo donors. When sperm or egg donors consider whether to donate gametes, they can get legal advice about that, and about the contractual arrangement they are entering — and the cost of that legal advice can be reimbursed by the intended parents. This is not the case for people who have embryos that they are considering donating. Embryo donors — people who initially created embryos for themselves but now find they have extra — have at least as much need for legal advice as sperm or egg donors. However, there is nothing in the regulations that stipulates they can be reimbursed for that professional advice.
The guidance, which I'll quote from in a minute, says otherwise.
Similarly, egg donors and loss of income. Egg donors sometimes get injured from donating. For instance, they can suffer ovarian hyperstimulation syndrome (OHSS), which can require anything from a visit to clinic to have fluid drained to days of hospitalization. Nowhere in the law or the regulations is it permitted to reimburse a donor for lost wages.
Again, the guidance says it's okay.
Specifically, the draft guidance currently reads: "Health Canada is of the view that reimbursements made in respect of matters not set out in section 12 ["reimbursement of expenditures"] of the AHR Act are not automatically prohibited by section 6 ["payment for surrogacy"] or 7 ["purchase of gametes"] of the Act. Certain reimbursements may be reasonably justified, such as reimbursing an ova donor for the loss of work-related income, or reimbursing an in vitro embryo donor for expenditures such as those incurred for counselling or legal services."
The same thing happens with loss of wages for surrogates after the baby is born. The law says wages can be replaced only during pregnancy. But the guidance says "Health Canada is of the view that surrogates may be reimbursed for the loss of work-related income during the post-partum period..."
This all strikes me as not only a little lazy, but risky. It does not bring the clarity we've all been waiting for. For the parents, it will bring comfort only until the first prosecution. And for the government, only until the first egregious audit. "Matters not set out in section 12" leaves a lot of latitude. Won't this invite the same pushing of boundaries that regulations were supposed to put an end to?
Lack of consistency over who gets to prescribe products and services, and lack of clarity over what those can be
For donors to be reimbursed for "products or services," those need to be prescribed by a "person authorized under the laws of a province to practise medicine," according to the regulations. For a surrogate to be reimbursed for "products and services," those need to be prescribed by a "person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period."
It is not clear to me why donors can only be prescribed products and services by doctors, but surrogates can be prescribed products and services by anyone treating them during the course of their pregnancy. That person could be a doctor or a midwife, of course, but could also, it seems, be a pharmacist, chiropractor, acupuncturist, or even, I suppose, a dentist.
Complicating matters further, the guidance says that categories of products and services that can be reimbursed have been left "intentionally broad." The guidance actually lists "homeopathic medicines" as an example of a reimbursable product. (To be fair, homeopaths are a self-regulating health profession in some provinces, including Ontario, but that doesn't change the fact that there is no scientific basis or evidence to support it. So if "homeopathic medicine" can be reimbursed, why not chocolate?)
Reimbursable services can include house cleaning and snow removal. I'm not questioning that a surrogate might sometimes need those services. But I'm concerned about the intentional broadness. What about an oil change on the car she uses to get to appointments? What about a repair to her laundry machine so she can have clean clothes to wear while pregnant? What about a visit to a nail salon to raise her spirits? I'm not denying a surrogate might need such things. Rather, given the history in Canada of using reimbursement to circumvent the law, I'm concerned that "services" will become the new cover for illicit payment.
(For the record, I lean towards the idea that allowing payment for surrogacy is better than insisting it be altruistic, and only allowing reimbursements. And it's definitely preferable to turning a blind eye to sham payments.)
At least in some cases, a surrogate will have to ask her doctor to prescribe services that the doctor may not view as medical — like snow removal. Doctors may not be comfortable doing so. Yet without such a prescription, the intended parents cannot lawfully reimburse their surrogate. This strikes me as potentially stressful for the doctor and demeaning for the woman.
For what it's worth, between the draft regs and the published regs, the word "obtaining" was added in a few places. For instance, section 12(1) 2(f) originally said there could be reimbursement for "expenditures for any products or services..." and now it says "expenditures for obtaining any products or services..." I'm guessing this is so that the prescribing doctor can at least charge a fee for the time it will take to do this unconventional prescribing.
As for reimbursement of a surrogate's lost wages, only a "qualified medical practitioner" can authorize the bed rest that will trigger it. Sadly, "qualified medical practitioner" is a term that appears to go undefined.
Groceries? Yes, but..."the reimbursement can only be for the cost of the additional groceries required to support a healthy pregnancy," say the guidelines.
Netflix? Probably not. She's allowed to be reimbursed for "expenditures related to communicating with the intended parents (e.g., long distance phone charges...)" but payment cannot be "disguised forms of payment (e.g., paying a surrogate's entire telecommunications bill, including for cable TV, high speed internet, etc.)," say the guidelines.
Down payment on a car? Almost certainly not. The regulations stipulate that "the maximum amount that may be reimbursed for the use of an automobile, other than an automobile used by a transportation service that provides a receipt, is the amount that is calculated on the basis of the distance driven in kilometres and the applicable automobile allowance rate posted on the Canada Revenue Agency's website for the year in which the transport or transportation occurred."
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