“Assisted” Reproduction – Oh, the Irony!

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

The federal government enacted the Assisted Human Reproduction Act in 2004 in an effort to regulate reproductive technologies and to prevent its commercialization.  However, when examining the practical effects of its provisions, it would appear that the title is a complete misnomer insofar as it has effectively rendered the most routine and elementary aspects of assisted reproduction illegal.  The Act prohibits the purchase and sale of sperm and eggs, and, in doing so, has virtually eradicated the legitimate supply of genetic material in Canada. 

The purchase of sperm and eggs in Canada invokes severe criminal sanctions – ten years in jail and a $500,000 fine.  Infanticide, prohibited by S. 233 of the Criminal Code, carries only a five year sentence thus leading to the legal anomaly that it is criminally worse to make a baby than to kill one.  However, despite the severe punitive consequences that accompany breaking these laws, the utter lack of enforcement seemed to suggest the condonation of these activities.

Unlike other regulated products, the business of paying for sperm, eggs, and surrogates, is not as covert and hush-hush an operation as other illicit markets.  The sale of sperm, eggs, and the marketing of surrogates is conspicuous and widespread across the internet on popular websites like Kijiji and Craigslist.  There are also fertility clinics that have not been complying with law as a matter of routine business practice.  The utter lack of enforcement of the laws, despite the severe punitive sanctions, is likely what encouraged a laissez faire attitude towards its adherence and lulled the fertility industry into a false sense of security.  That is, until February 2013, when a fertility company, known as Canadian Fertility Consultants (CFC) was raided by the RCMP.   Leia Picard, an Ontario surrogacy consultant, and her company, were charged with 27 offences under both the Assisted Human Reproduction Act and the Criminal Code.  

This occurred after a year-long investigation into the activities of the full-service consultancy firm in Brighton, Ontario, which also had a branch in Comox, British Columbia.  For what Ms. Picard’s web site describes as a “fixed price,” she provided assistance to parents in finding a surrogate mother to carry their child and sometimes arranged for a donor to provide eggs, alongside other services. 

This type of crackdown, the first Canadian enforcement of its kind, will deprive vulnerable parents of the assistance of companies like CPC who help navigate them through the complex and emotional process of surrogacy motherhood without being exploited.  

Ms. Rhoads- Heirich, who runs Surrogacy in Canada Online, a company similar to CPC, comments:   “It’s a really sad day for Canadians, and for the babies that won’t be born.  If we have to cease working, it means they’re on their own and more subject to being taken advantage of … They’re just left with Kijiji and Craigslist.”

- Ana Kraljevic, Toronto

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