Health Canada misses mark with AHR Act changes: Cohen

By Randy O’Donnell, AdvocateDaily.com Associate Editor

New regulations within the Assisted Human Reproduction Act (AHRA) do not go far enough in allowing reimbursements for surrogates and egg donors, says Toronto fertility lawyer Sara Cohen.

Cohen, founder of Fertility Law Canada at D2Law LLP, says the federal government failed to address the advice of advocates when making changes to the Act, which became law this summer.

“For example, they don’t specifically allow coverage of a surrogate’s net lost wages in the postpartum phase following birth or an egg donor’s net lost wages at all,” she says.

The entire point of the law is to protect women. So, having a surrogate who just gave birth and has to go back to work the next day because she’s not allowed to expense net lost wages after the birth is clearly bad policy.”

She is particularly concerned about intended parents being able to top-up lost wages.

“Health Canada clearly wanted these expenses to be included, but instead of doing it correctly by making changes to s. 12 of the Act so that it’s enforceable and recognized by judges, the most important reimbursements are only in a guidance document,” says Cohen, who is also president of Canada’s leading fertility advocacy organization, Fertility Matters Canada.

“The problem is that a guidance document is not law. So, a judge could theoretically say, ‘Very nice, but the law requires that the expense be listed in s. 12, and if not, it isn’t allowed.

The AHRA became law in 2004. According to Health Canada, it was “designed to protect and promote the health, safety, dignity, and rights of Canadians who use or are born of AHR technology.”

In 2016, the federal government began the process of updating the Act. Following consultations, changes came into force in June.

The new regulations establish broad categories of expenditures that could be reimbursed by intended parents. These could apply to a sperm or ova donor, a surrogate, or a person for the maintenance and transport of in vitro embryos.

Allowed expenses include those incurred for:

· travel, including expenditures for transportation, parking, meals, and accommodation

· the care of dependants or pets

· counselling services

· legal services and disbursements

· obtaining any drug or device as defined in s. 2 of the Food and Drugs Act

· obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period

· services of a midwife or doula

· groceries, excluding non-food items

· maternity clothes

· telecommunications

· prenatal exercise classes

· expenditures related to the delivery

· cost of health, disability, travel, or life insurance coverage

· obtaining or confirming medical or other records

Paying for the services of a surrogate is illegal in Canada — a person caught paying for a surrogate could be fined up to $500,000 and jailed for up to 10 years. However, women can be reimbursed for expenses.

Cohen says paying for surrogacy should be decriminalized and regulated as a health issue at the provincial level.

She says Health Canada has gone in the wrong direction, arguing that it’s impossible to list all the expenses necessary for surrogates.

“I don’t like the idea of having this complete list. I don’t think the spirit of the law requires it. The idea behind the law is that a surrogate or donor can’t be paid but is entitled to be reimbursed for associated costs,” Cohen says.

“However, the way the law is written, if you are paid for surrogacy it is illegal. And by having a list of reimbursable expenses, anything outside that list, even though a legitimate expenditure, becomes illegal.

“The burden of these expenses then goes onto the surrogate or donor, which is counter to the spirit of the law,” she says.

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