Since the 1980s, there has been an increasing number of people seeking out assisted human reproduction services in Canada. Enacted in 2004, the Assisted Human Reproduction Act (AHRA) lays out Canadian law concerning matters such as sperm and ova donation, egg preservation, and surrogacy. Surrogacy is when a woman carries a fetus to term for another person or persons; this can be done using the traditional method, whereby the surrogate mother donates her eggs in addition to carrying the child, or by the gestational method, an arrangement where the woman carrying the child is not biologically related to it.

When it comes to commercial surrogacy, the AHRA is clear: it states that no person shall “pay a woman to be a surrogate mother”, arguing that such commercialization of reproduction raises ethical concerns that justify its prohibition. By prohibiting commercial surrogacy, the AHRA therefore depends on Canadian women altruistically volunteering to meet the domestic demand for surrogacy. Direct or disguised payment of surrogates is also illegal. For example, an intended parent (one who seeks to have a child through surrogacy) is not allowed to pay a surrogate’s tuition in exchange for her services. However, surrogates may be reimbursed for costs directly incurred by the pregnancy itself, such as maternity clothes. The repercussions for breaking the AHRA by paying a surrogate are severe, including fines of up to $500,000 or incarceration for up to 10 years. Nevertheless, it should be noted that the surrogate herself is not criminalized. 

As policy, Canada’s AHRA promotes the outdated, exploitative societal expectation of female altruism, makes it harder for queer individuals to have children, and disregards the reality of surrogate experiences in the Global North, where the choice to become a surrogate was found to be more safe and autonomous than in the Global South. To modernize reproductive policy and create a fair environment that does not take advantage of women, Canada should move to legalize and regulate commercial surrogacy. 

FEMALE ALTRUISM AND CANADIAN SURROGACY

The AHRA’s main claim against commercial surrogacy is that it is unethical because it exploits the surrogate women by commercializing their reproductive capabilities. Vida Panitch, a professor at Carleton University, rejects this notion, positing that the current altruistic system itself is exploitative; she argues that if everyone benefits monetarily in surrogacy arrangements except the surrogate herself, this reinforces the idea that a woman’s role in the assisted reproduction process must be altruistic and exposes her to be taken advantage of. In addition, the AHRA’s claim about the unethicality of commercializing reproduction is flawed, as Canada has shown that it does put a market value on other aspects of human reproduction. For example, Canadians buy sperm and ova from other countries, fertility lawyers offer Surrogacy Arrangement document services, and the doctors who perform in vitro fertilization make money. Others have argued that refusal to compensate for female reproductive work “perpetuates the patriarchal tradition of failing to pay for ‘women’s work’”. Allowing for the payment of surrogates would properly recognize the reproductive work of women as a contribution to the Canadian economy and working life, empowering them and putting them on an equal level with surrogacy doctors and fertility lawyers. Updating the AHRA to legalize commercial surrogacy in Canada, if properly regulated, would not unethically commodify female surrogates. Realistically, it would help situate surrogates as equals to those around them, stopping the exploitation of their reproductive labour.

THE AHRA AND QUEER FAMILIES AND INDIVIDUALS IN CANADA

From 2006-2016, the number of same-sex couples increased much more rapidly than the number of opposite-sex couples. Despite this growth, only one in eight same-sex couples had children living with them in 2016, in contrast to the one in two ratio that opposite-sex couples had. Same-sex couples having fewer children than opposite-sex couples may not be entirely caused by restrictions on assisted reproduction, but they certainly contribute to these contrasting ratios. 

Queer* families are increasingly reliant on reproductive technology as an alternative to natural conception: a recent American survey found that 63% of queer people planning on starting families expected to do so using alternatives such as adoption, foster care, or assisted reproductive technology. This trend indicates that aspiring queer parents will continue to use assisted reproduction extensively as many are unable to have biological children with their partners without such technology, unlike most cisgender individuals in heterosexual relationships. They also face logistical issues, financial barriers, and complicated legal matters such as discrimination or bias from surrogacy professionals that cisgender heterosexual couples seldom have to consider when starting a family. Compounded restrictions on sperm donation, self-insemination, and surrogacy make it increasingly difficult for groups who rely on these assisted reproduction procedures to have children. For example, gay cisgender men, who are unable to become pregnant themselves, are faced with the additional hurdle of having the services they rely on to start families be convoluted and often challenging to access. 

Essentially, the current AHRA puts queer Canadians at a disadvantage when it comes to creating families through assisted reproduction. The AHRA discriminates against queer Canadians by not allowing them the same opportunities as their cis, heterosexual fellow citizens to have children. This has driven some couples to engage in ‘health tourism’, finding commercial surrogate mothers in less developed countries, where the lack of regulation poses a greater danger for the mothers.  Legalization and regulation of commercial surrogacy would help queer Canadians start families by offering them another reproduction pathway and potentially increasing the number of surrogates available to them domestically.  

Through the AHRA, the Canadian government puts many barriers in front of queer individuals looking to start families. Professor Angela Cameron of the University of Ottawa asserts that because of the AHRA, queer families are “arguably being regulated out of existence”. A principle of the AHRA is that “persons who seek to undergo assisted reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status”. However, the AHRA seems to go against these proposed ideals, constructively discriminating against queer Canadian families by making services that many queer Canadians rely on to have children harder to access. 

SURROGATES’ RIGHT TO AUTONOMY: EXPERIENCES IN THE GLOBAL NORTH

A primary concern over the legalization of commercial surrogacy is the potential for coercion among vulnerable or financially insecure women. However, studies have shown that in countries in the Global North such as Britain or the United States (where commercial surrogacy is legal in several states), “the decision to become a surrogate is generally an autonomous decision, made without coercion or undue influence, by women who welcome payment but are not desperate for money”. Moreover, analysis of such studies found that financial distress was not an impetus for these women when entering into surrogacy agreements. Thus, scholars such as Ronli Sifris of Monash University argue that the decision to be a surrogate is within a woman’s right to autonomy and bodily integrity. Given the proximity and similarity of Canada to the United States in economic, social, and cultural terms, it is reasonable to predict that the factors driving women to become surrogates would be similar here. Commercial surrogacy is also legal in Russia and Ukraine, where the choice to be a surrogate is regarded as an expression of a woman’s autonomy. If she is making a free and informed decision about her own body, guided by legal agreements,  a surrogate should be able to receive compensation for her reproductive work.

TAKING NOTES FROM NEW YORK

Canada can potentially look to New York as an example of how to approach the implementation and regulation of commercial surrogacy. In April of 2020, New York state legalized gestational commercial surrogacy, allowing residents to enter into compensated surrogacy contracts as early as February 15th, 2021. Assemblywoman Amy Paulin, co-sponsor of the bill, proclaimed that the change would “bring New York law in line with the needs of modern families, while simultaneously enacting the strongest protections in the nation for surrogates”. The New York law placates potential confusion or concern surrounding commercial surrogacy agreements by making the process transparent via legal guidelines. There is a minimum surrogate age of 21; the intended parents must pay for the surrogate’s life and health insurance during the pregnancy and for a year after the birth; there is a minimum compensation of $35,000 for the surrogate. Reproductive lawyers commend the state’s law for helping “single women, single men, gay couples [and] unmarried couples” to have children. Canada only needs to look to New York to see how commercial surrogacy can be regulated and how it can benefit the many people struggling to start their own families. 

By moving to legalize commercial surrogacy in Canada, the AHRA would better serve all Canadians, allowing queer individuals more opportunities to have children, and increasing the autonomy and just compensation of Canadian women. Surrogate experiences in the Global North indicate that this idea is not only feasible, but safe. 

* [note: ‘Queer’ is used here as an umbrella term encompassing all gender and sexual minorities and individuals within the LGBTQIA+ community] ]