The Failure of Canadian Legislature to Support Surrogacy

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Surrogacy is defined as an arrangement by which a woman gives birth to a baby on behalf of a woman who is physically unable to have babies herself, and then gives the baby to her. It is meaningful in different ways for every person involved. For biological parents, it is the opportunity to have a child and create a family. For surrogates, it is the chance to be generous and give someone a child that they desire. However, in Canada, the law prohibits any payment of services or egg/sperm donation (National Review, 2010). This has resulted in a process that remains largely unregulated and without clear guidelines; so, many couples have been forced to seek alternative measures. The government has continuously neglected the reproductive technology industry, both in regulation and adaptation. These complications have ultimately resulted in many families ‘outsourcing’ medical services to other countries, where costs are significantly lower (Macleans, 2007). This trend and lack of safety reveal the devastating options slowly emerging from Canada’s present fertility industry. Comparatively, commercialized industries present an opportunity to correct the flaws of current legislation. While the concept of reproductive rights is familiar, surrogacy continues to be one of the most socially controversial solutions to infertility. By examining unregulated costs, international services and lack of reliable statistics, it is clear that by refusing to legalize surrogacy as a service, the Canadian government has failed to protect families.

The primary issue of surrogacy right now, is the government’s inability to regulate costs. Surrogacy allows biological parents to have more control throughout the pregnancy, when compared to alternatives such as other medical treatments or adoption. As it is illegal to pay for the services of a surrogate mother, or to purchase sperm and eggs (Macleans, 2007). Federal law allows only altruistic surrogacy (where the surrogate does not receive monetary compensation). A major issue is the high costs associated with the current method of surrogacy, with compensation averaging CAD $20,000 for expenses in the province of Ontario (National Review, 2010). An additional aspect to current surrogacy contracts is that if any terms are violated, payment for services will entirely cease, leaving the surrogate without a system of support with checks and balances. Moreover, the structure of Canadian families is violated through the failure of legislation to establish an effective system through the aspects of cost, enforcement, and socio-economic implications. While surrogacy is not without difficulties, it still remains one of the best solutions to begin a family for those who are struggling with fertility (Health Canada, 2019). However, if the government sustains ignoring barriers in the law, Canadian families will continue to struggle with an unregulated and unsafe system.

The absence of clarity within the law has encouraged many Canadians to realize the faults of legislation, and they also are fighting to change this. An example of this commitment is a Quebec MP's recent push to decriminalize fees for surrogacy. Quebec Liberal MP Anthony Housefather sponsored a private member's bill in the House of Commons calling for the decriminalization of payment for surrogacy, egg donation and sperm donation (Carreiro, 2018). These actions clarify potential and controversial issues within surrogacy, as well as the impacts if the Canadian government were to decriminalize fees for surrogacy. Responses cover not only a likely result of the situation, but also the legal implications that will likely follow. A second point of fault in legislation, is that present law fails to provide any case law for guidance on surrogacy trials. This means that Canadian courts cannot establish legal principles from the original legislation. Without any rational, it is difficult for lower courts to establish any precedent (Carreiro, 2018). Moreover, these conflicts brings not only social perspective to attention, but also potential future expansion and improvements for surrogacy laws. It reveals how the legal system has failed to protect families from potential risk pertaining to surrogacy without any form of guidance.

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The deficiency of regulation within the law must be acknowledged, which has resulted in proposed revisions by deeply frustrated citizens . The Assisted Human Reproduction Act (AHR) was initially designed to protect and promote the health, safety, and the rights of Canadians who use or are born of assisted reproductive technology, such as surrogacy (Cohen, 2016). However, the Act fails to provide any useful regulations to the industry. In 2016, recognizing the need to strengthen the federal regulatory framework governing AHR in Canada, Health Canada announced its intention to bring into force the dormant sections of the AHR act (Health Canada, 2019). This successfully clarifies potential and controversial issues. The information covers not only a likely result of related situations, but also the legal implications that follow. Moreover, because surrogacy is not considered a service by law, the border between rights and obligations within the law of Canada remains to identify the faults in Canada’s government and legal system through the push to decriminalize fees and rehabilitate the AHR act.

The government’s lack of regard for the health and safety of citizens should also be recognized. Health risks to surrogacy aren’t meaningless, and have a higher risk of complications than a typical pregnancy (Advocate Daily, 2016). Thus, this only increases the need for standardized regulations and safety procedures for the surrogacy process across Canada. But, the solution to these issues is simple; allowing surrogacy in Canada to become a commercialized industry. The Collins dictionary refers to commercial surrogacy as “any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses”. Commercial surrogacy is largely needed, as the vagueness in current legislation only causes more anxiety for the parties involved. Presently, similar issues are apparent in surrogacy contracts. As more Canadian couples struggle with infertility, the more will ultimately speak with consulting agencies to help locate potential surrogates. Because many of the agencies’ practices are considered unethical, building in false expenses and problematic contracts; this conclusively puts all participants at risk (Advocate Daily, 2016). Additionally, a commercialized industry would protect everyone’s rights. The commercial system acknowledges that the surrogate should be reasonably reimbursed for fulfilling their obligation, both physically and mentally. Pregnancy is a painful and difficult process, and thus should be recognized as so. In other countries, where surrogacy is commercialized, the law not only regulates safe procedures and contracts, but also defends the rights of all parties involved (Motluck, 2014). Moreover, a commercialized surrogacy industry would expand the reproductive freedoms of Canadian citizens. This law puts Canadian families in danger; exactly the opposite of its original intent. Because of this, current legislation should be abolished. Revising these laws will clarify surrogacy services and guidelines for couples looking to use reproductive technology when starting their families. By equalizing the positions of all parties and decreasing the risks of international treatments, commercialization is truly the best option for the government to pursue in relation to protecting families into the future.

With severe restrictions to surrogate pregnancies in Canada, many Canadian couples are seeking fertility services overseas in countries such as India, that have already legalized commercialized surrogacy. India is providing a valuable example for Canadian policy-makers, as well as services for infertile couples. Canada’s 2004 law regarding surrogate pregnancy is particularly weak. It forbids any commercial relationships in surrogacy; only unpaid, altruistic arrangements are permitted. Yet the difference between a $6,500 surrogacy fee in India and $20,000 in “expenses” in Canada is one of money, not ethics (Kozicka, 2016). Since there no globally recognized laws that regulate this process, seeking more affordable surrogacy in countries such as India remains uncertain and potentially dangerous. What is even more problematic, is the fact that federal legislation has nothing to say about whether altruistic surrogate agreements are valid or enforceable. Ideally Canada could use the template proven in India, but with regulations and controls that keep the process fair and people safe. These actions could justify many socio-economic implications of the surrogate industry, and ultimately resolve the questionable morals involved. Additionally, by encouraging more infertile couples to seek services in Canada, the government can obtain reliable statistics relating to surrogacy. This would lead to safer procedures, and ultimately less risks in medical procedures (Kozicka, 2016). Moreover, Commercial surrogate contracts of the sort negotiated are an important expression of free choice between informed adults. Canada has the opportunity to enact major changes to the reproductive industry. Citizen’s actions of outsourcing to another country have only proved a failing system, so it is the responsibility of Canadian government to fix it. By lowering costs through commercialization, the option for surrogacy as a fertility treatment could become more accessible to any family (Health Canada, 2019). Canada’s unsatisfactory law on surrogate pregnancies should be reformed to provide these same benefits to all citizens.

Through a commercialized industry, families are finally able to come together in a safe and rewarding way. Parents are able to have the biological children they desire. However, the welfare of surrogate is often questioned. What exactly do they gain from the pregnancy? Though every surrogate is a different person, the intent to help another person (begin a family) is commonly shared. Being selfless and assisting someone else have a family is one of the most gratifying experiences in life. A prime example of this is the interview of Rikki Lenahan, a seasoned surrogate from Ontario, Canada. She states, “I have received nothing but an outpouring of support and love from friends and family and even strangers who hear my stories” (Walas, 2019). She concludes the interview saying, “I felt so much pride and so happy that I was able to help a family complete. I never really anticipated just how far what I did would impact other people.” (Walas, 2019). This woman's words create a more personal and empathetic approach to the morality of the surrogacy process. Moreover, the positive implications of surrogacy is not only apparent in the intended parents lives, but also the surrogate themselves. The ability to give another person a family is a valuable gift of life. However, if Canada wishes for surrogacy to continue, the government must acknowledge the issues with current legislation and take action towards a commercialized system in order to ensure the security of all parties in future pregnancies (via a surrogate).

In conclusion, Canadian legislation continues to fail families through lack of standard regulations, allowing unsafe international outsourcing to continue, and the ultimate refusal to update legislation. It only increases the need to understand how a commercialized surrogate industry differs from Canada; both in success and process. While many Canadians have realized the faults of current laws, they also are fighting for significant change of structure and philosophy to Canada as a whole, and how citizens continue to perceive the method of surrogacy far into the future. The system continues to identify the flaws in Canada’s legal system through the push to decriminalize fees, establish new case law, and rehabilitate the AHR act (Health Canada, 2019). The negative impacts on the structure of Canadian families is explicit through real life and personal perspectives. However despite these failings, the Canadian government has been presented an opportunity to correct the past and ensure the future. To enact major changes to the reproductive industry, commercialization is truly needed. Moreover, it is clear that the current Canadian legislation pertaining to surrogacy services negatively impacts the structure of Canadian families. By denying the freedom of creating a family to thousands of citizens, our government has failed. This should be used as an opportunity to expand conversations on real life encounters in the surrogacy industry, and how to improve future families in Canada, in a safe and affordable way that is accessible to all.

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