Surrogacy in Canada: Toward Permissive Regulation

• Author: Erin Nelson
• Pages: 185-211

185

6

Surrogacy in Canada

  

Erin Nelson*

A. INTRODUCTION

Surrogacy is an age-old practice and one with varying degrees of social

acceptability. The original form of surrogacy, traditional surrogacy, involves

fertilization (via sexual intercourse or assisted insemination) of the surrogate

mother’s egg with the intended father’s sperm. In traditional surrogacy, the

surrogate mother of a child is also the child ’s biological (genetic) mother.

When fertility treatments such as in vitro fertilization (“IVF”) became avail-

able, it became possible to separate gestation from genetics which, in theory

at least, made surrogacy potentially more appealing as a mode of family for-

mation. In gestational surrogacy, the egg cell comes from either the intended

mother or a donor. The surrogate is the child’s birth mother, but she is not

genetically related to the child. In turn, this arguably leads to more clarity

around genetic parentage and, in particular, motherhood.

The ability to separate genetics from gestation in the context of surrogacy

did not lead readily to greater acceptance of surrogacy. If anything, it led to

heightened concern due to the perceived ease with which women’s bodies

* I would like to thank Daniel Howitt for assisting with research on this chapter. I also

wish to thank my colleague Ubaka Ogbogu and the editors and anonymous peer

reviewers of this chapter for their helpful comments on earlier drafts. Finally, I grate-

fully acknowledge the f‌inancial support of the University of Alberta Faculty of Law.

186 |  

could be used (and potentially exploited) to advance the aims of those who

could not conceive naturally but wished to have genetically related children.

Some feminists raised concerns about the very availability of IVF, given the

emphasis it places on women’s reproductive roles.1 Others worried about

exploitation of women and children, and about the notion that a woman

might be forced to relinquish a child toward whom she had developed a

maternal bond.2 This latter concern was fuelled by the Baby M case, in which

the child’s surrogate mother (genetic and gestational) refused to relinquish

the child to the intended parents. The intended parents successfully sought

custody of the child, while the surrogate mother (who was also the child’s

biological mother) was granted access to the child.3

The arguments for and against surrogacy as a method of family build-

ing are well known and have been canvassed at length elsewhere.4 My aim

here is not to consider these concerns in depth, but to provide a foundation

for the assertion that surrogacy is contested and that the legal rules around

surrogacy in Canada (and other jurisdictions) reect a substantial degree

of discomfort with the practice. I would go so far as to say that Canadian

law seeks to discourage surrogacy and perhaps thereby avoid dealing with

the legal and policy challenges it creates.

1 See, for example, Renate Klein, “From Test-Tube Women to Bodies Without Women”

(2008) 31:3 Women’s Studies International Forum 157; Joan C Callahan & Dorothy E

Roberts, “A Feminist Social Justice Approach to Reproduction-Assisting Technologies:

A Case Study on the Limits of Liberal Theory” (1995–96) 84:4 Kentucky Law Journal

1197 at 1227; Susan Sherwin, No Longer Patient: Feminist Ethics and Health Care

(Philadelphia: Temple University Press, 1992) at 128–29.

2 Joseph F Sullivan, “Brief by Feminists Opposes Surrogate Parenthood” New York

Times (31 July 1987), online: https://nyti.ms/2FC1A3L; Phyllis Chesler, Sacred Bond:

The Legacy of Baby M (New York: Times Books, 1988).

3 In the Matter of Baby M, 217 NJ Super 313 (Ch Div 1987), rev’d 109 NJ 396 (1988).

4 See, for example, Chesler, above note 2; Stephen Wilkinson, “The Exploitation Argu-

ment Against Commercial Surrogacy” (2003) 17:2 Bioethics 169; Suze Berkhout, “Buns

in the Oven: Objectif‌ication, Surrogacy, and Women’s Autonomy” (2008) 34:1 Social

Theory and Practice 95; Jennifer Damelio & Kelly Sorensen, “Enhancing Autonomy in

Paid Surrogacy” (2008) 22:5 Bioethics 269; MM Tieu, “Altruistic Surrogacy: The Neces-

sary Objectif‌ication of Surrogate Mothers” (2009) 35:3 Journal of Medical Ethics 171;

Peter Gaf‌fney, “Why the ‘Widespread Agreement’ Is Wrong: Contesting the Non-harm

Arguments for the Prohibition of Full Commercial Surrogacy” (2009) 17:2 Journal of Law

and Medicine 280; Elizabeth Anderson, “Is Women’s Labor a Commodity?” (1990) 19:1

Philosophy and Public Af‌fairs 71; R Jo Kornegay, “Is Commercial Surrogacy Baby-Selling?”

(1990) 7:1 Journal of Applied Philosophy 45; Alan Wertheimer, “Two Questions About

Surrogacy and Exploitation” (1992) 21:3 Philosophy and Public Af‌fairs 211.