Surrogacy is a method of gestation by which a woman agrees to carry a pregnancy for another person(s), who will eventually become the newborn child’s parents after birth. While surrogacy is allowed in principle and in practice there are a series of legal restrictions that affect surrogate parents along with the entire process.
In many respects, Canada has a place of honor on the list of countries where liberalism has preeminence. However, it would seem there remains an aspect of Canadian law that may fall short of Canada’s liberalist reputation. It may surprise many that under Canadian law people who engage the services of a surrogate are strictly forbidden from paying for those services under the pain of criminal prosecution.
Section 5(3) of the Assisted Human Reproduction Act expressly bans any form of remuneration (in cash or kind) to a surrogate. It also prohibits purchasing donor eggs and sperm. What is even more surprising is that these activities carry a possible prison term of 10 years or a maximum of $250,000 or $500,000 for a person found guilty of violating Section 5 of the Act.
For LGBT couples, this raises the challenge as to how these couples can successfully convince a surrogate to bear the brunt of pregnancy and childbirth without any form of remuneration. On a practical level that seems almost impossible. It is understandable why many people find the criminalization of paying surrogates as a subtle attack of the LGBT community under the guise of ethics; for some others it also constitutes an injustice to heterosexual couples who for medical or personal reasons cannot have children on their own. This is one area of law that needs development. Hopefully, with the recent global interest in surrogacy, these barriers may soon be a thing of the past in Canada.
On the other hand the reservation of critics of this proposal is also quite understandable. For some critics criminalizing remunerations for surrogates under the law is intended to avoid a covert “human sale” activity. Some critics fear we might be returning to the age of “slave trade.” Perhaps the original law was intended to avoid past crimes, with a different face and name, where people were sold as slaves.
While these reservations are plausible and quite understandable, there is a clear difference between selling off a human being as a “slave” and paying a surrogate for the services of bearing a human being who is later intended to be “your child.” The former is clearly “inhumane”, “unethical” and must remain “illegal” but the latter option seems plausible given that different circumstances: infertility, marriages between persons of the same sex and choice, may warrant the need to use a surrogate. Reducing the difficulty already faced by these people would seem like the responsible thing to do.
Perhaps a better way of striking a balance between these two arguments would be to address the ethical issues that may arise from legalizing the payment of surrogates, but an outright ban may seem a little inconsiderate to some and reasonably so.