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Surrogacy laws need more work: Cohen

Canada still has a long way to go to bring clarity to the laws governing reproductive issues, Toronto fertility lawyer Sara Cohen tells Law Times.

Cohen, founder of Fertility Law Canada at D2Law LLP, says the laws have also failed to keep up with societal attitudes toward surrogacy and egg and sperm donation.

She is particularly concerned about the prohibitions on payments to surrogates for carrying a child, as well as for eggs and sperm donation. Current legislation prohibits compensation for those who donate sperm or eggs or carry babies for others, says the article, noting that penalties include up to 10 years in prison and $500,000 in fines.

Surrogates can only be reimbursed for pregnancy-related costs, such as medication and travel to medical appointments, but in the 14 years since the federal Assisted Human Reproduction Act (AHRA) received royal assent, regulations have never been enacted to provide guidance on what constitutes a reasonable expense, says Law Times.

The article goes on to say that the AHRA was “gutted” after a 2010 Supreme Court of Canada ruling that said some sections of the law strayed into provincial territory because they're health matters.  

Cohen, who founded Fertility Law Canada in 2011, says the 2016 passage of Ontario’s All Families Are Equal Act improved the situation, but issues remain.

For example, the Act created a seven-day waiting period for surrogates to revoke their consent after giving birth, during which time they share decision-making with the intended parents, says the article.

The change was “awkward and unnecessary,” Cohen tells the legal publication, because most situations involve gestational surrogates, where the surrogate is not related to the fetus, rather than the surrogate’s own egg being fertilized with donated sperm.

“It’s just not a realistic fear that a gestational surrogate will want to keep the baby, so maybe they could have differentiated more between gestational and traditional surrogacy,” Cohen suggests. “There are certainly things I don’t love about that law, but, overall, it’s good legislation.”  

Cohen is one of several fertility lawyers who support a private member’s bill introduced in May by Liberal MP Anthony Housefather. The bill aims to eliminate criminal charges for those who pay for and receive donated sperm and eggs, as well as surrogacy services, says the article.

Cohen says the ban on payment for egg and sperm donations has dried up the supply of both in Canada.

She says Canada has only one national sperm bank, compared to approximately 20 before the AHRA’s implementation in 2004. 

Without the ability to pay, she tells Law Times, Canada’s sole sperm bank can only attract between 20 and 40 donors per year, which means nearly all donor sperm is imported from countries where it’s paid for.

"That puts it out of the reach of Canadian regulators in terms of registries and other things that matter to Canadians," Cohen tells AdvocateDaily.com

“The purpose of the AHRA was to protect children born through assisted human reproduction, as well as donors and surrogates. But these criminal prohibitions are hurting them, not helping them,” Cohen says.  

She believes provinces should be able to regulate surrogacy as a health matter, which would also help define the position of the agencies involved. 

“Agencies have an important role to play in educating and assisting all parties. When you have someone walking you through the process, it’s very helpful,” Cohen says. “Some are wonderful, but others are considerably less than wonderful, and I think provinces should be able to step in to license and regulate them.”

She also says, “there’s little incentive for anyone to bring their concerns to the attention of authorities when it’s not clear if they broke the law by paying the agency.”  

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