Lawyers Financial

Labour pains: updating the Assisted Human Reproduction Act

Surrogates who give families the gift of children should be paid for their work, not just reimbursed for expenses, Toronto fertility lawyer and mediator Kelly D. Jordan tells

Jordan, principal of Kelly D. Jordan Family Law, says the new draft regulations for the Assisted Human Reproduction Act have several omissions she would like to see addressed, including provision for post-birth payments when the surrogate is off work, and reimbursement to donors for loss of work during the monitoring, egg retrieval and recuperation process.

"We're pleased to have some guidance, but there are concerns with some fairly significant expenses that haven't been included that were routinely paid for in the past," she says.

The fact the proposed legislation does not deal with decriminalizing payments to a surrogate is a concern and is contrary to the research around why people make the decision to become one, Jordan says.

"These women need to be protected. This is not the Handmaid's Tale many people think it is,” she says. "They're not doing it to make money or because they are being forced to be handmaids. The surrogacy community is a very warm, tight-knit group and the women who choose to be surrogates see it as an act of altruism. These new regulations would actually have them personally be out of pocket for giving this gift to intended parents."

Jordan says while lawyers now have draft regulations dealing with reimbursements for people donating eggs, sperm ova, embryos or surrogates, more aspects need to be added, including payment of clinic-recommended counselling for surrogates.

Agreements Jordan and other lawyers previously negotiated topped up employment insurance wages for surrogates for the 17 weeks they were off work following the baby's birth, but this is missing from the new draft, she says.

"The spirit of the legislation is that you don't want the people donating to be out of pocket for expenses. It shouldn't be financially difficult to do this,” Jordan says. "I believe surrogates should be able to be paid for the work they do, but the legislation doesn't allow for this.

With rising infertility rates in Canada, she says families are increasingly looking to third parties to assist them.

“We need to make sure that the treatment and resources they need are available to them,” Jordan says.

The proposed regulations are going to have a disproportionate impact on the LGBTQ community where the main option is to have children with the help of third parties, she says.

In late October, Health Minister Ginette Petitpas Taylor announced the launch of consultations on the proposed new regulations on assisted human reproduction with the aim of protecting those who use (or are born from) donated sperm or eggs, or use a surrogate mother.

The Assisted Human Reproduction Act came into effect in 2004, but "was gutted," because of a challenge resulting from a ruling that the law infringed on provincial health jurisdictions, Jordan says.

Montreal MP Anthony Housefather has tabled a private member's bill to decriminalize payments for surrogate mothers, she says.

Jordan, whose two children were conceived by assisted reproduction, has more than 20 years' experience in the field of fertility law and has helped countless families with egg, embryo and sperm donor contracts, surrogacy contracts, adoption, birth registration and declaration of parentage after the child is born.

The federal government will receive submissions from individuals and organizations on the new draft legislation until January, she says.

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