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.