'Why We Don't Know What We Don't Know' About Canada's Surrogacy Practices and Outcomes

• Author: Pamela M White
• Pages: 51-80

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“Why We Don’t Know What We Don’t Know” About

Canada’s Surrogacy Practices and Outcomes

Pamela M White

Despite the fact that the success of procedures generates the statistics,

the statistics justify the carrying out of infertility medicine — the choice

of a particular treatment for a particular patient.1

A. QUESTIONING WHAT WE KNOW AND DON’T KNOW

ABOUT SURROGACY

Canada’s initial foray into the emerging medical arena of assisted reproduction

occurred when the country’s rst “test-tube baby” was born in , some

ve years after the birth in the United Kingdom of Louise Brown.2 Yet for all

of the study undertaken since by a royal commission,3 parliamentary commit-

tees,4 courts,5 ethicists, and policy analysts,6 Canadians continue to know

1 Charis Thompson, Making Parents: The Ontological Choreography of Reproductive

Technologies (Cambridge, MA: MIT Press, 2005) at 109.

2 Wayne Williams, “Canada’s Very Own Test Tube Baby” CBC Digital Archives (10 Febru-

ary 1984), online: www.cbc.ca/archives/entry/canadas-very-own-test-tube-baby.

3 Royal Commission on New Reproductive Technologies, Proceed with Care: Final

Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of

Government Services Canada, 1993).

4 House of Commons, Standing Committee on Health, Assisted Human Reproduction:

Building Families (Ottawa: Standing Committee on Health, 2001).

5 Décret 1177-2004 (15 December 2004) in GOQ (5 January 2005) 137 année, n 1, partie

2 at 62–63; Décret 73-2006 (14 February 2006) in GOQ (8 March 2006) 138 année,

n10, partie 2 at 1290; Reference re Assisted Human Reproduction Act, 2010 SCC 61.

6 See, for example, Parliamentary Research Branch, Legislative Summary: Bill C-13 Assisted

Human Reproduction Act, by Monique Hébert, Nancy MillerChenier, & SonyaNorris,

LS-434E (Ottawa: Library of Parliament, 2002) [revised 16 April 2003]; Margrit Eichler,

“Frankenstein Meets Kaa: The Royal Commission on New Reproductive Technologies”

52 |   

very little about the practices and outcomes of fertility medicine. Even

less is known about what some consider to be one of its more contentious

practices: surrogacy.7 But lack of empirical evidence about surrogacy’s

outcomes has not hindered governments and medical organizations from

prohibiting some practices, regulating others, and privileging certain pro-

fessional protocols.8 Perhaps we should not be surprised at this state of

aairs: reproductive health information, be it about contraception, abor-

tion, or birthing, has frequently been hidden from women, a circumstance

that denies women and girls their full human rights.9

This chapter traces my journey to uncover what we know and do not

know about surrogacy and fertility medicine practices and outcomes in Can-

ada. In so doing, it asks: “Why don’t we know what we don’t know?” I query

why is it so dicult to obtain reliable and consistent information about assisted

reproduction and the practice of surrogacy. I seek to understand whether

there is something unique about fertility medicine — and, in particular, sur-

rogacy — that belies rigorous measurement and information-based decision

in Gwynne Basen, Margrit Eichler, & Abby Lippman, eds, Misconceptions: The Social

Construction of Choice and the New Reproductive and Genetic Technologies, vol 1 (Hull,

QC: Voyageur, 1993) 1; Timothy Caulf‌ield, “Underwhelmed: Hyperbole, Regulatory Policy,

and the Genetic Revolution” (2000) 45 McGill Law Journal 437.

7 Karen Busby & Delaney Vun, “Revisiting The Handmaid’s Tale: Feminist Theory Meets

Empirical Research on Surrogate Mothers” (2010) 26:1 Canadian Journal of Family

Law 13; Erin Nelson, “Global Trade and Assisted Reproductive Technologies: Regula-

tory Challenges in International Surrogacy” (2013) 41:1 Journal of Law, Medicine and

Ethics 240; Françoise Baylis, Jocelyn Downie, & Dave Snow, “Fake It Till You Make It:

Policy Making and Assisted Human Reproduction in Canada” (2014) 36:6 Journal of

Obstetrics and Gynaecology Canada 510; Kristin Lozanski, “Transnational Surrogacy:

Canada’s Contradictions” (2015) 124 Social Science and Medicine 383.

8 Assisted Human Reproduction Act, SC 2004, c 2; Bill C-38, An Act to implement certain

provisions of the budget tabled in Parliament on March 29, 2012 and other measures,

1st Sess, 41st Parl, 2012; Notice (Department of Health), (1 October 2016) C Gaz I,

2818 (Assisted Human Reproduction Act, SC 2004, c 2, ss 6, 12(2)); Health Canada,

“Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Can-

adians on Key Policy Proposals” (2017), online: www.canada.ca/en/health-canada/

programs/consultation-assisted-human-reproduction/document.html [Toward a

Strengthened AHR Act]; Regulation respecting clinical activities related to assisted

procreation, CQLR c A-5.01, r 1, s 27; All Families Are Equal Act (Parentage and Related

Registrations Statute Law Amendment), 2016,SO 2016, c23.

9 Lynn P Freeman, “Censorship and Manipulation of Reproductive Health Information”

in Sandra Coliver, ed, The Right to Know: Human Rights and Access to Reproductive

Health Information (Philadelphia: University of Pennsylvania Press, 1995) at 1.