Surrogacy in Canada: Critical Perspectives in Law and Policy II

Monday, February 12, 2018

On May 17th and 18th 2017 the University of Ottawa Faculty of Law hosted an SSHRC funded conference exploring feminist perspectives on surrogacy in Canada. Professors Alana Cattapan of the University of Saskatchewan, and Angela Cameron and Vanessa Gruben from the University of Ottawa hosted fifteen feminist scholars from Canada and abroad.

The University of Ottawa Faculty of Law is home to a number of active and inspiring feminist student groups. The conference organisers were fortunate to have students from these organisations working with us at the conference. The next few blog posts will feature interviews of conference presenters by student conference participants. These interviews highlight participant's ideas, research and writing on surrogacy in Canada and abroad.


Interview 2:

Surrogacy in Canada: Emma Ryman and the Fiduciary Duty
Tori Paton

Despite three years of law school in two different countries, I know little about fiduciary duties, other than that they are challenging to research and that they seem to be a relatively flexible concept.  A fiduciary duty, if I understand correctly, is the duty that one has to act in the best interest of another, in cases where the first person exercises power on behalf of the second. A classic example of a fiduciary duty is a board member of a corporation, in which the board member has an obligation to the shareholders to act in the best interests of the corporation (and not in their own interest). Other examples include trustee arrangements, or the delegation of power of attorney.
                                                                                                                      
Emma Ryman is an expert on the role of the fiduciary duty on physician’s fiduciary obligations in the context of surrogacy. I met her while volunteering for a workshop on Surrogacy in Canada held at the University of Ottawa in May 2017. The workshop brought together scholars in the fields of law, philosophy, medicine, and bioethics, all who have worked in different areas of surrogacy throughout their academic careers. Ryman, a doctoral candidate in the Philosophy Department at Western University, was one of these scholars, and her research on the fiduciary duty immediately piqued my interest. She takes a normative approach to the study of the fiduciary duty in patient-physician relationships in the case of surrogacy, investigating not whether the relationship between doctors and surrogates is recognized as being fiduciary in the law, but whether it should be.

As someone who focuses on family and immigration law (where I rarely run into the legal issue of fiduciary duties), I had never thought about the fact that a fiduciary duty could exist between a doctor and a patient. I always thought of fiduciary duties in the context of a mortgage broker or a trustee.  As Ryman explained, the physician-patient relationship is clearly a fiduciary one, however, as it is a relationship in which patients trust their doctor to make some decisions on their behalf, and assume that their doctor will make decisions in their best interest (see for example, McInerney v MacDonald).

For the case of surrogacy, it is important to stress that people who have fiduciary duties have a responsibility to avoid conflicts of interest. Physicians need to act in their patients’ best interests and should not be in a position that might tempt them to advance their own. But conflicts of interest are prevalent in surrogacy arrangements. Surrogates are pregnant women, whose health is impacted by their pregnancy in the same ways as other women. At the same time, there are other people who have a vested interest in that pregnancy. In India (which, until recently, had a very significant market in international surrogacy) surrogates typically lived away from their families in hostels, with strict regulation of their living conditions, diet, and exercise. While some physicians were involved in the medical surveillance of surrogates in India, care was often provided to advance the interests of the intended parents, the surrogacy agency, and the physician, as well as the child to be born, with little attention paid to the women’s health and well-being.

Although the case of surrogacy in North America is quite different (as described by three women who spoke at the workshop about their experiences as surrogates), there is a similar desire among intended parents to control the actions of the women carrying their child, and their doctors and clinics and lawyers play important roles in those arrangements. Although her explanation of these conflicts of interest were enough to convince me that physicians owe surrogates a fiduciary duty, she substantiated her position by referring to the work of another workshop attendee, Pamela White. White identified the concern that in the context of fertility clinics, intended parents’ interests may be prioritized over surrogates, and the surrogate can easily be seen as the ‘treatment to the couple’s infertility,’ rather than a patient herself. 

Ryman suggested a number of ways that the situation might be improved. One way would be to implement payment structures where surrogates are given money upfront by intended parents to pay for their own medical expenses. Other ways of ensuring surrogates’ health interests are prioritized include requiring that parties receive independent medical care for all parties, and giving freedom to doctors to refuse to enforce the terms of surrogacy contracts when doing so is in surrogates’ best medical interests. Finally, Ryman suggests that single embryo transfer should be standard practice so doctors won’t be tempted to increase success rates by transferring multiple embryos (a danger for surrogates since it often leads to higher risk, multiple pregnancies).

Some of Ryman’s recommendations will be difficult to achieve, and given legislative and regulatory challenges in this field, legislation may never be able to address all of these concerns. And while it is already widely recognized that doctors have fiduciary duties to their patients, ensuring that doctors act on this duty in the context of surrogacy is a different story. At the same time, reforms that prioritizes surrogates’ agency, health, and safety in surrogacy agreements is likely to create positive changes for surrogates. With the work of scholars like Ryman, however, we may have new arguments and tools to continue to work toward change.

Surrogacy in Canada: Critical Perspectives in Law and Policy

Tuesday, February 6, 2018

On May 17th and 18th 2017 the University of Ottawa Faculty of Law hosted an SSHRC funded conference exploring feminist perspectives on surrogacy in Canada. Professors Alana Cattapan of the University of Saskatchewan, and Angela Cameron and Vanessa Gruben from the University of Ottawa hosted fifteen feminist scholars from Canada and abroad.

The University of Ottawa Faculty of Law is home to a number of active and inspiring feminist student groups. The conference organisers were fortunate to have students from these organisations working with us at the conference. The next few blog posts will feature interviews of conference presenters by student conference participants. These interviews highlight participant's ideas, research and writing on surrogacy in Canada and abroad.


Interview 1:

Melanie Snow

Surrogacy in Canada: A Commentary on Regulation with Jocelyn Downie

Although the Assisted Human Reproduction Act has existed since 2004, the Canadian regulatory landscape in relation to surrogacy, remains somewhere between sparse and non-existent. At the workshop on surrogacy in Canada hosted by the University of Ottawa’s Faculty of Law, an interdisciplinary group of Canadian, feminist academics presented a wide variety of perspectives on the issue, their diverging opinions suggesting why this area has remained unregulated for so long. While the workshop was successful, it underlined the fact that much work was left to be done in areas ranging from scientific and social science research to public awareness and acceptance of the practice.

According to Dr. Jocelyn Downie, a professor in both the faculties of Law and Medicine at Dalhousie University, regulating surrogacy is the key ingredient needed to achieve these goals. Downie (whose many areas of specialization include health law and assisted reproduction) called out Health Canada for their failure to regulate in this important field.

When asked whether the lack of movement by Health Canada was due to an absence of empirical data in the field that might support change, Downie specifically stated that the lack of evidence was tied to the lack of regulations: “They [Health Canada] haven’t put in place the systems for enabling us to get that evidence so they need to fully implement the Act and [increase] our capacity to generate the evidence.”

Her insistence comes in part from the fact that the wait for regulations to bring certain parts of the Act into force is ongoing, more than ten years after the Act first passed. She emphasized not only that the delay in making the regulations has been long, but also that there is “no good reason” for it. Downie emphasized that that Health Canada could proceed immediately, stating: “I think they should put out draft regulations, they should do a consultation, they should put them in place and then enforce them.”

The absence of these regulations is particularly difficult as the regulations play a key role in the potential effective enforcement of the law. Under the Act, surrogates can be reimbursed for receipted expenditures, but what can count as a legitimate expense is left to the regulation-to-come. The Act aims to avoid a commercial system, premised instead, following Downie, on the idea that “you shouldn’t be out of pocket but you shouldn’t be making money.” When asked what regulations she would put in place if she was able to do so tomorrow, Downie asserted that she would start by providing “Very clear guidance on what you can include as a receipted expenditure,” as well as processes for submitting receipts and oversight.

In emphasizing this connection Downie underlined the important role the criminal law plays in public awareness surrounding surrogacy.

“It’s an indirect effect of having the regulations. […] Part of why we have the silence around surrogacy to my mind is because it has not been clear to people, or it’s been suggested that the law is unclear. […] So, there is confusion around what’s legal and not legal, in relation to surrogacy, and there have been practices going on that I think are illegal but it’s not being enforced. So, there is this spectre of illegality in the context of criminal law that means that I think people feel most comfortable in the shadows, and I think that’s unhealthy. But until we get the regulations in place and the enforcement of the regulations and the law, that is what’s going to continue to keep it out of public discourse.”


The very clear message to Health Canada then, from this highly accomplished Canadian scholar would seem to be: regulation and enforcement; sooner rather than later.  
Designed by Rachel Gold.