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Should surrogates and donors be paid?
The great debate
What are the harms of allowing payment for surrogacy or gamete donation? What are the harms of not allowing it? Experts weigh in.
When it comes to assisted reproduction, no two people agree on everything. There's always a point, it seems to me, where even like-minded people will diverge.
The question of payment for third party reproduction — that is, reproduction involving surrogates, egg donors, sperm donors or donated embryos — is no exception. Almost everyone agrees that people should be treated fairly — not exploited, not coerced, not disempowered. Very soon after that meeting of minds, however, the disagreements begin. And there are many.
Last November, in a single week, there were three separate discussions in Toronto about Canada’s prohibition on payment for gamete donation and surrogacy.
At a conference for lawyers, Reproductive and Fertility Law, there was a debate between Sara Cohen, a fertility lawyer based in Toronto, who argued against the prohibitions, and Erin Lepine, a fertility lawyer in Ottawa, who argued in their favour.
Later that week, as a prelude to a day-long public conference, Regulating Creation, there was an evening debate between Francoise Baylis, a philosopher at Dalhousie University in Halifax, who argued in favour of maintaining the prohibitions and strengthening the regulations, and Vida Panitch, a philosopher at Carleton University in Ottawa, who argued that the law might have 'exploitation' all wrong. Roxanne Mykitiuk , at Osgoode Hall Law School, moderated.
Then, during the main Regulating Creation conference the following day, a panel discussion entitled "Commercializing Assisted Human Reproduction: Should the Commercialization of Surrogacy and Gamete Donation be Prohibited?" again explored the issue. It brought together four academics: Alana Cattapan at the University of Saskatchewan, Ubaka Ogbogu at the University of Alberta, Stu Marvel at University of Leeds School of Law, and Stefanie Carsley, a doctoral student at McGill University Faculty of Law.
I had the great pleasure of attending all three. Below, I distill just a few key points that caught my ear.
Canada's Assisted Human Reproduction Act (AHRA) came into force in 2004. It prohibits paying or arranging to pay for surrogacy, eggs, sperm or embryos. Breaking the law can be punished by up to ten years in jail or a fine of $500,000. Importantly, egg donors, sperm donors, and surrogates who receive money are not breaking the law.
A central goal of Canada's Assisted Human Reproduction Act (AHRA) of 2004 was to prevent exploitation. Lawmakers worried that vulnerable people would be lured into surrogacy and gamete donation by the promise of money.
Erin Lepine: "With payment, comes the risk of an abuse of the balance of power between those who can afford to pay and those in need of payment."
Vida Panitch: Not paying is the real exploitation: "when someone isn't paid while others profit off their contribution, when someone is lied to and told they can't be paid because what they provide is too valuable to have a price, while others profit from their contribution and from this deception." Unpaid surrogacy is exploitative. We are "unfairly distributing the value created from the transaction."
Ubaka Ogbogu: The law should both avoid exploitation and facilitate what women need in order to thrive. We shouldn't just focus on avoiding exploitation.
Sara Cohen: It is "paternalistic" and "offensive" to prohibit payment to surrogates. A surrogate has agency.
Francoise Baylis: New regulations will be coming into force soon. "I am excited for the regulations to come into play and for us to allow them to have a chance to work."
Roxanne Mykitiuk: "The prohibitions do nothing to protect women in other countries." They do not prevent "foreign shopping."
Alana Cattapan: In the US [where there is a lot of paid surrogacy] are surrogates any better recognized as a class of workers? Is cheap work better than free? If we don't adequately recognize care work, do we want to put reproductive labour work in there too?"
Vida Panitch: "Much of waged labour is induced." If the transactions are wrongful because they induce poor and vulnerable people, then advocating for a basic income is the best way to protect people. "Women are much less likely to go into the intimate trades" if they have other income sources.
Surrogates and donors can’t be paid. They can only be reimbursed for the proven expenses they incur in the process.
Francoise Baylis: "Our system is founded on altruism, not commercialization. We are making a public statement about what we believe in. Payment undermines altruism."
Vida Panitch: "Payment and altruism are not mutually exclusive." A pediatric oncologist gets paid, but is still doing noble work — we don't blame her for accepting payment. Women who act as surrogates are still being altruistic.
Ubaka Ogbogu: "There is an untenable assumption that this work should be 'done for free' or 'out of love.' This assumption is at odds with contemporary understandings of work, especially women's work, and is unjust and inconsistent with the values of a just society." Why should reproductive labour be unpaid work? "The things we don't pay for are predominantly things women do."
Stu Marvel: "What we are really saying is that, in addition to carrying a child for another couple, surrogates should also act as book-keepers and accountants, and keep a detailed ledger of the kind of expenses we have found to be largely unquantifiable within the family home. I am worried about this."
Francoise Baylis: "There are many 'good' things in the world that we do not and should not attach a price to." We love our parents. Is it the same if we agree to love them only if they pay us $100 a week? I help a person cross the street. Do I ask them for a dollar if I help them cross the street?
Paying for surrogacy or donation is a criminal act in Canada.
Erin Lepine: "I have heard many argue that the AHRA criminalizes women's bodies. This is untrue.... The AHRA is drafted to ensure that there are no prohibitions on the people who want to act as surrogates or donors. The criminal sanctions are directed at those who pay or organize payments."
Francoise Baylis: "The legislation does not target the women but the buyers."
Sara Cohen: "What would enforcement look like? A fine? jail time?" No one wants to put new parents in jail for the crime of wanting a child. "The criminal model doesn't work."
Erin Lepine: "Without criminal prohibitions, the use of reproductive technologies would be left to the provinces and territories to govern. If this were the case, we risk some provinces doing nothing at all, while others may prohibit payment, or even prohibit reimbursement." [Interprovincial reproductive tourism could result.]
Francoise Baylis: "People say it's terrible that we're criminalizing people — that they’re going to end up in jail because they gave a woman flowers. It's all about the art of misdirection. In reality, in 14 years there's been one conviction, and it was $60,000 not $500,000."
Stu Marvel: "As we know, these laws do not have real 'teeth' and only one person has ever been prosecuted under them. We know this because we are all very clever and well informed lawyers and scholars and ethicists and researchers. Intended parents, in my research at least, do not know this, and are incredibly concerned about the criminal penalties they perceive as looming over their heads." Criminal law is "not an appropriate tool to regulate the human relationship between surrogates, gamete donors, intended parents, and their children."
Stu Marvel: "Queer people, and gay men in particular, have faced painful histories of criminalization and policing in Canada... Criminal law is not the right way to channel people into appropriate behaviour around human reproduction."
Our law prohibits trade in the human body.
Vida Panitch: "But you sell your body every day. What can you do without it?"
Erin Lepine: How do you establish a proper level of payment? "For ova and sperm donation, a fair wage may be possible to determine, but for surrogacy, a task that for the pregnancy stage spans over 9 months, 24 hours per day -- how can a fair wage that is affordable to the intended parents be established?"
Francoise Baylis: "People are racialized." Some eggs are said to be worth more than others.
Stu Marvel: "Allowing compensation of sperm donors in Canada would help recruit larger numbers of Canadian donors who would more accurately reflect the complex racial identities of the intended parents who are recipients of these donations."
Francoise Baylis: People talk about the problem of undersupply. "Why do we think about it as a supply problem? There's an undersupply of solid organs but we don't talk about paying for them."
Francoise Baylis: It's about the "vision of the world we want to live in... We don't put body bits into the marketplace."
Despite a ban on payment in our own country, most third-party sperm and eggs used in Canada are imported from places where payment is legal. Canadians can legally pay for these gametes. Many surrogates in Canada are in fact paid under the guise of 'reimbursement.'
Sara Cohen: "In Canada, we import 95 per cent of sperm and that sperm is paid for!"
Sara Cohen: Our ban on payment is "at the expense of everything else", including donor-conceived people, for whom we can't track origins.
Stefanie Carsley: One lawyer pointed out she thinks reimbursement is becoming excessive. Some surrogates are asking for $50,000 in 'reimbursements' because they are 'experienced surrogates.' Some agencies are saying that the surrogate should get increased 'reimbursements' if she is an 'experienced' or 'second-time surrogate.' Getting more money for being an experienced surrogate doesn’t correspond with the intentions of the law.
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