Situating Canada's commercial surrogacy ban in a transnational context: a postcolonial feminist call for legalization and public funding.

• Author: Deckha, Maneesha
• Position: Abstract through II. Transnational Surrogacy Through a Postcolonial Feminist Lens A. Postcolonial Feminist Analysis - Exploitative Elements, p. 31-59

In large part due to feminist interventions in the early 1990s about the dangers of assisted reproductive technologies (ARTs) for women, Canada banned several practices related to ARTs when it enacted the Assisted Human Reproduction Act (AHRA) in 2004. Notably, the AHRA prohibited commercial surrogacy. Feminists feared that a market in surrogacy would exploit and objectify marginalized Canadian women who would be pressured into renting out their wombs to bear children for privileged couples. Since the early feminist deliberations that led to the ban, surrogacy has globalized. Canadians and other citizens of the Global North routinely travel to the Global South to source gestational surrogates. In doing so, they partake in an industry that heavily depends on material disparities and discursive ideologies of gender, class, and race. Indeed, the transnational nature of surrogacy treatment substantially reshapes the earlier feminist commodification debates informing the AHRA that took the domestic sphere as the presumed terrain of contestation. Due to the transnational North-South nature of surrogacy, a postcolonial feminist perspective should guide feminist input on whether to allow commercial surrogacy in Canada. I argue that when this framework is applied to the issue, the resulting analysis favours legalization of commercial surrogacy in Canada as well as public funding for domestic surrogacy services and ancillary ARTs.

En 2004, le Canada adoptait la Loi sur la procreation assistee (LPA), interdisant plusieurs pratiques reliees aux technologies de procreation assistee pour les femmes, et ce, en reaction aux interventions de feministes au debut des annees 1990 sur les risques de ces technologies. La LPA interdit particulierement la maternite de substitution a visees commerciales. Certaines feministes craignaient que le marche de maternite de substitution ait pour effet d'exploiter et d'objectiver des femmes canadiennes marginalisees, qui pourraient se sentir poussees a louer leurs corps pour porter les enfants de couples privilegies. La pratique de la maternite de substitution s'est mondialisee depuis les premieres discussions feministes ayant mene a sa prohibition. Les Canadiens et d'autres citoyens de pays du Nord visitent regulierement les pays du Sud a la recherche de meres porteuses. Ce faisant, ils participent a une industrie qui depend fortement de disparites materielles et d'ideologies discursives de genre, de classe et de race. En effet, la nature transnationale du traitement de la maternite de substitution reformule substantiellement les premiers debats feministes sur cette marchandisation; ces debats faisaient partie du contexte de la LPA et voyaient la sphere domestique comme le terrain de contestation presume. En raison de la nature transnationale Nord-Sud de la maternite de substitution, une perspective feministe postcoloniale devrait guider l'apport feministe a la question de savoir si le Canada devrait permettre la maternite de substitution a visees commerciales. Nous argumentons que le recours a une telle perspective mene a une conclusion qui prone la legalisation de la maternite de substitution a visees commerciales au Canada ainsi que le financement public de services de maternite de substitution a visees commerciales et de technologies accessoires de procreation assistee.

Introduction I. Canada's Ban and the Rise of Transnational Commercial Surrogacy A. Canadian Prohibition and Feminist Influences B. Rise of Cross-Border Reproductive Care and Transnational Surrogacy 1. Growth Factors 2. Lack of Regulation and Power Disparities II. Transnational Surrogacy Through a Postcolonial Feminist Lens A. Postcolonial Feminist Analysis--Exploitative Elements 1. Autonomy Violations 2. Harnessing Socioeconomic Vulnerability for Reproductive and Material Ends 3. Encoding Racialized and Colonial Sensibilities B. Postcolonial Feminist Analysis--Beneficial Elements 1. Economic Advancement III. Recommendations for Domestic Legal Reform A. Repealing Canada's Ban 1. Alignment with Feminist Concerns: A Lack of Exploitation at Home 2. Resolving Governmental Inconsistency 3. Responding to Present-Day Public Preferences 4. Government-Mediated Delivery B. Providing Publicly Insured IVF and Other ARTs 1. Increasing Accessibility 2. Responding to (Feminist) Arguments Against ART Funding a. Criticism 1: Other Health Care Priorities Are More Pressing b. Criticism 2: Public Funding Sends a Conservative, Pro-Life, Natalist Message c. Criticism 3: Public Funding for ARTs is Elitist 3. Are Criminal or Immigration Interventions Better? C. Summary Conclusion In 2004, Canada enacted the Assisted Human Reproduction Act (1) eleven years after the Royal Commission on New Reproductive Technologies (RCNRT) issued its report about the ethical and legal implications of assisted reproductive technologies (ARTs) in 1993. (2) The Act, which started out as the ninth in a series of bills in the area, prohibits and regulates ARTs and arrangements relating to fertility treatments and other scientific research involving human embryos. (3) In large part due to feminist interventions about the dangers of ARTs for women, including the exploitation and objectification feared from markets in reproductive materials and medicine, Canada banned several practices related to ARTs. (4) Notably, payment to individuals for their gametes and commercial surrogacy were prohibited. (5) The legislation favours an altruistic surrogacy model on the grounds that commodification of pregnancy violates human dignity and poses heightened concerns for women whose bodies are heavily invested in ARTs and for children born from these technologies. (6)

Although feminist voices were instrumental in shaping the policy recommendations of the RCNRT that eventually culminated in the above-noted prohibitions, other equity-seeking groups disagreed with the dominant feminist position that ARTs or markets in reproductive materials were harmful. Of particular note, queer scholars criticized the altruistic model, fearing that without paying people for their gametes, supplies would dwindle and preclude queer couples and individuals from becoming parents. (7) More recently, some feminists have called for revisiting the AHRA's core anti-commodification approach toward ARTs given changing social mores. (8)

Given very recent constitutional and political developments, however, it is unlikely that a review will materialize. Constitutionally, in the Supreme Court reference on the federal government's ability to regulate medical professionals and clinics providing fertility treatments, significant portions of the Act were struck down as ultra vires federal powers. (9) Politically, recent defunding of the already inactive regulator in this area leaves the statute without any specialized enforcer. (10) The present lack of political will to secure the enforcement provisions to support the AHRA's prohibitions accentuates the need for critical attention to what the AHRA continues to ban. Indeed, given the absence of an expert regulator and the patchwork nature of the revised statute post-reference, (11) the statute and what it attempted to regulate is ripe for a regulatory overhaul. (12) The work Canadian feminists have already begun in recommending law reform in this area should continue apace. (13)

In this regard, some feminists initially opposed to commodification, but now aware of the pressure from reproductive tourism on national regulatory limits, may be ready to rethink the prohibitions in the AHRA. The phenomenon of Canadians travelling abroad for fertility treatment needs to be a prominent factor in these deliberations. (14) Though documentation of how many travel is scant, it is reasonable to assume that Canadians are among the global elite who now commonly travel to the Global South to actualize their desires to become parents through the reproductive materials and services that Southern women provide. (15) This phenomenon is acutely the case with gestational commercial surrogacy where scholars have remarked that it is the bodies of poor brown women that now produce babies for rich (primarily) white women and men. (16) India is a global hotspot for the practice, (17) defined as an arrangement where surrogates gestate embryos formed from the gametes of others (typically those of the commissioning parents but sometimes emanating from third party donors) and give up the baby upon birth in exchange for payment. (18)

Gestational surrogacy differs from traditional surrogacy where a surrogate also supplies the egg, and intra-uterine insemination (IUI) is used to fertilize it. (19) IUI is less invasive than in vitro fertilization (IVF), which requires the woman supplying the egg to undergo ovarian stimulation, superovulation, and egg retrieval. Gestational surrogacy relies on IVF; eggs are retrieved from the intended mother or egg donor, fertilized with the sperm of the intended father or sperm donor, and then, if an embryo or embryos result, one or more will be placed into the surrogate's uterus. (20) Gestational surrogacy is thus a pathway for single women and heterosexual or lesbian couples to produce a biologically related child when women cannot become or stay pregnant. It is also a route to such a child for single men or gay couples where traditional surrogacy is not feasible or desirable due to the absence of parentage legislation that secures the fathers' parental rights over the birth mother's. In all situations, the gestational surrogate will not have any genetic link to the child. (21)

Canadians and other citizens of the Global North travel to India to use gestational surrogates, (22) and thus partake in an industry that, as many feminists have highlighted, heavily depends on material disparities and discursive ideologies of gender, class, and race. (23) My purpose here is to emphasize that the increasingly globalized nature of surrogacy treatment substantially...