Health Canada is planning on amending the Assisted Human Reproduction Act and is seeking feedback from the public.

The three main areas subject to change are regarding:

  1. Safety of donor sperm and egg
  2. Reimbursement of surrogates and egg/sperm donors
  3. Administration and enforcement of the Act

The changes would affect fertility clinics, importers and distributors of sperm and egg, people who wish to use donated egg or sperm, people pursuing surrogacy, and surrogacy agencies.

One of the more fundamental changes would be to establish specific categories in law for which egg and sperm donors, and surrogates, could be reimbursed. It is not hard to see why this is a sensible proposal. There are certainly people who try to get around the law prohibiting payment by providing overly generous and unjustifiable “reimbursements”. Health Canada is well within its right to try and curb violations of the law.

However, this amendment could lead to unintended consequences if not carefully drafted.

Just as every pregnancy is different, so is every surrogacy. One surrogate may have an easy and healthy pregnancy with very few out of pocket expenses – perhaps she lives close to the fertility clinic, has maternity clothes from previous pregnancies, and does not require bed rest. Another surrogate with a high-risk pregnancy may have to fly to a different province several times to become pregnant, attend many appointments to monitor her gestational diabetes, require significant assistance with household or childcare responsibilities while hospitalized due to hyperemesis gravidarum (extreme morning sickness) and have to miss over a month of work.

These surrogates will have very different claims for reimbursement from the intended parents. A restrictive list of allowable reimbursements could leave the second surrogate significantly out of pocket.

Likewise, the law currently contemplates reimbursement of a surrogate’s loss of income during the pregnancy if her doctor says continuing to work may pose a risk to her health or the baby’s health.¬† However, the law does not take into account the significant amount of lost work that results from having to attend numerous appointments – trips to the fertility clinic, ultrasounds, obstetrician or midwife, blood lab, etc.; and some of these occur not during but before the pregnancy. Even the most simple and low risk pregnancies can consist of over a dozen such appointments. And it is not reasonable to assume that all employers will accommodate this much time off work (not to mention some surrogates are self-employed).

While commercial surrogacy is prohibited in Canada, a surrogate should never have to subsidize a pregnancy or suffer financial losses. And if allowable reimbursements become too narrow, even fewer women are likely to become surrogates (and there are already not enough to meet the demand).

Health Canada is currently seeking feedback on the categories of reimbursements that should be considered for inclusion in the amended law. It is therefore essential  Рfor the benefit of future surrogates and intended parents Рthat the categories of reimbursements be sufficiently broad and flexible enough to account for the wide range of circumstances and ensure surrogates are not in a position where they will suffer economic consequences for their altruism.

Interested in providing your feedback to the government? You can do so online here.