Should Canada Implement a Flat-Rate Reimbursement Model for Surrogacy Arrangements? Legal and Ethical Recommendations for a Revised Approach to Reimbursement

• Author: Angel Petropanagos, Vanessa Gruben, & Angela Cameron
• Pages: 155-183

155

5

Should Canada Implement a Flat-Rate Reimbursement

Model for Surrogacy Arrangements?

      

  

Angel Petropanagos, Vanessa Gruben, & Angela Cameron

A. INTRODUCTION

In , Health Canada announced its intention to proceed with bringing

into force sections , , and  to  of the Assisted Human Reproduction

Act (AHRA)1 and to draft the supporting regulations.2 The completion of

these sections of the AHRA has been long awaited by many providers, users,

and researchers of third-party reproduction.3 In particular, these groups

have been awaiting section  regulations, which concern the reimburse-

ment of expenditures for surrogates and donors of reproductive materials.

In their absence, there has been considerable confusion with respect to the

legal permissibility of reimbursements of receipted expenses for surro-

gates and donors of reproductive materials.4 In practice, surrogates and

1 Assisted Human Reproduction Act, SC 2004, c 2 [AHRA].

2 Notice (Department of Health), (2016) C Gaz I, 2818 (Assisted Human Reproduction Act).

3 Dave Snow, Françoise Baylis, & Jocelyn Downie, “Why the Government Won’t Regu-

late Assisted Human Reproduction: A Modern Mystery” (2015) 9:1 McGill Journal of

Law and Health 1.

4 Robert Cribb & Emma Jarratt, “Canada’s Vague Surrogacy Laws May Be Doing More

Harm Than Good” Toronto Star (18 September 2016), online: www.thestar.com/news/

canada/2016/09/18/canadas-vague-surrogacy-laws-may-be-doing-more-harm-

than-good.html [Cribb & Jarratt, “Canada’s Vague Surrogacy Laws”]; Françoise Baylis,

Jocelyn Downie, & Dave Snow, “Fake It Till You Make It: Policymaking and Assisted

156 |  ,  ,   

gamete donors are often reimbursed for expenses related to their involve-

ment in third-party reproduction.5 At present, these reimbursements occur

with little to no legal guidance on which receipted expenses should qual-

ify for reimbursement. If and when completed, the section  regulations

would provide a list of the types of receipted expenses that could be legally

claimed by surrogates and donors.

While the section  regulations will provide stakeholders with more

guidance and legal certainty, the implementation of the model for reim-

bursement, as it is currently drafted, creates several practical, ethical, and

legal challenges. In this chapter, we revisit the model for receipted expenses

outlined in section  of the AHRA and discuss its limitations. In response

to these limitations, we propose an alternative model for reimbursement

that organizes expenses into three separate groups. We call this approach

the “three baskets” at-rate model for reimbursement.

Our at-rate model stems from practical, ethical, and legal concerns

about the receipted-expense model established under section  that were

voiced during a round table meeting of feminist academics and activists from

across the country held in November  in Ottawa. At this meeting, some

participants began to explore alternative models for reimbursement, one

of which was eventually called the “three baskets” approach. Under this

approach, surrogates and donors would receive at-rate reimbursements in

three separate categories.

Since we rst began discussing these ideas for at-rate reimbursement

of women acting as surrogates, the political and legal climate in Canada

regarding the regulation of surrogacy has shifted. At the time, we were

working under the assumption that Health Canada would move for-

ward with the proposed regulatory scheme, and we were exploring ways

to improve the proposed framework within the connes of the altruis-

tic framework of the AHRA. The guiding principles of the AHRA state

that “commercial ends raise health and ethical concerns that justify their

Reproduction in Canada” (2014) 36:6 Journal of Obstetrics and Gynecology Canada 510

[Baylis, Downie, & Snow, “Fake It Till You Make It”].

5 Alison Motluk, “The Human Egg Trade: How Canada’s Fertility Laws Are Fail-

ing Doctors, Donors, and Parents” The Walrus (12 April 2010), online: https://

thewalrus.ca/the-human-egg-trade/ [Motluk, “The Human Egg Trade”]; Tom

Blackwell, “Canada’s Murky Legal World of Surrogate-Consultants and Human-

Egg Buyers” National Post (9 March 2012), online: http://nationalpost.com/wcm/

f7a8b71e-97cb-4b58-9027-10e07ada0dfd.