We should regulate agencies
It's illegal in Canada to broker an egg donation or a surrogacy for money. The prohibition is not working.
Regular readers of HeyReprotech will know that I like to write about Canada's federal law — the Assisted Human Reproduction Act, 2004 — and the peculiarities of how it has been implemented.
Not so long ago, people who concerned themselves with this law debated quite regularly about the legality of egg donor and surrogacy brokers, which we tend to refer to as "agencies." Typically, these entities liaise between the people who need egg donors and surrogates and the people who act as egg donors and surrogates. The reason we talked about agencies a lot is that the Canadian law is quite clear that charging money to act as a go-between is not allowed.
Acting as intermediary
No person shall accept consideration [payment, money or a thing of value] for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
Payment to intermediaries
No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.
Purchase of other reproductive material
No person shall purchase, offer to purchase or advertise for the purchase of a human cell or gene from a donor or a person acting on behalf of a donor, with the intention of using the gene or cell to create a human being or of making it available for that purpose.
In this section, “purchase” or “sell” includes to acquire or dispose of in exchange for property or services.
Anyone reading this might wonder how it is, then, that Canada has more than a dozen agencies that appear to do some of these things. They appear to take money in exchange for arranging the services of a surrogate. They appear to take money to act on behalf of donors. And they appear to be advertising services that looks a lot like those things.
Over the years, many academics, lawyers, journalists, intended parents, surrogates and others have openly expressed their confusion over this apparent contradiction — that paid arranging is taking place out in the open despite the fact that it is prohibited — and there has been a lot of shaking of heads. But the fact remains that at no point has anyone been charged for contravening this part of the law.
Early on, many were hopeful that once the government regulator, "Assisted Human Reproduction Canada," was fully operational, it would set things straight. But AHRC never really became fully operational. And in its few short years of life — officially 2006 to 2012, but in practice less than that — it seemed to spend more effort on helping agencies finesse the perception of lawfulness than actually holding them to account.
Later, in 2013, when the first charges under the AHRA were laid, against Canadian Fertility Consulting (CFC), there was the expectation that the case would bring some clarity regarding how agencies could operate. And in a way it did: although CFC was charged with (and pled guilty to) other offences under the law, it was never charged with "accepting consideration for arranging the services of a surrogate" or for "acting on behalf of a donor."
Did this mean that agencies as we knew them were okay? Did it mean that whatever methods they were using to bring together parents and third parties were viewed by government as in keeping with the law? No one knows for sure. But in the aftermath of the court case, CFC grew stronger, and new agencies entered the field.
What struck me over the past year, as people interested in the law became re-energized by the promise of long-awaited regulations, is that everyone had more or less stopped talking about agencies. Even though we were not expecting regulations specifically regarding agencies — the activities mentioned above are outright prohibited — it was still surprising how uncontroversial they had become.
We need to keep talking about agencies.
My personal view is that prohibiting paid intermediaries, the way the law does, is bad policy. But allowing them to operate unfettered is no better.
Surrogacy and egg donation can be complicated, and, just as in adoption, agencies have the potential to make things run more smoothly for all concerned. I accept that. But notably, private adoption agencies, which fall under provincial jurisdiction, are regulated and licensed. In Ontario, for instance, they must be not-for-profit, they must have a board of directors and they must be relicensed every year. The people who coordinate adoptions have to be trained and approved.
No such requirements exist for egg donor or surrogacy agencies. There is no qualification, accreditation or licensing required. Presumably that's because it's impossible to regulate something we don't permit.
I have heard positive stories about agencies — and I believe they can offer a valuable service. They should be legal. But I have also heard negative accounts. They can do harm. So they need to be regulated. If that means rewriting parts of the law, we should consider it.
Below, I share a few of the allegations that individuals, over the years, have taken the time to bring my way.
The agency charged a $6,500 fee.
The agency charged a $10,000 fee.
The agency charged a $14,500 fee.
The agency did not respond to emails or phone messages in a timely way.
The agency did not support the intended parent.
The agency did not support the surrogate.
The agency missed appointments without notice.
The agency conveyed incorrect information about clinic requirements.
The agency neglected to collect appropriate receipts for money disbursed to the surrogate.
The agency was inconsistent about allowances for travel and meals.
The agency asked for payment from the intended parent before the surrogate was medically screened (and failed).
The agency allowed the egg donor to file thousands of dollars of additional expenses 18 hours before the retrieval.
The agency made false statements.
The agency made malicious statements.
The agency hung up the phone on the intended parent.
The agency yelled at the intended parent.
The agency threatened legal action against the intended parent.
The agency threatened legal action against the surrogate.
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