Debate chair Professor Roxanne Mykitiuk, Osgoode Hall Law School, Vida Panitch, Associate Professor of Philosophy at Carleton University and Professor Françoise Baylis of Dalhousie University Faculty of Medicine
Debate discusses if current prohibition is required or justified
Story and photo by Peter Boisseau
Proposed new Health Canada regulations that would broaden the expenses surrogate mothers and women who donate their eggs can claim fail to address the “gender inequality” in the federal law that bans those women from being paid, a University of Toronto Law debate was told.
The Nov. 22nd debate, part of the Mary and Philip Seeman Health Law, Policy and Ethics Seminar Series, was organized to kick off a conference on the Assisted Human Reproduction Act (AHRA) sponsored by the Faculty of Law, Health Law in Canada and U of T’s Institute of Health Policy, Management and Evaluation.
With public consultations on the new regulations closing on Jan.10th, 2019, some participants at the debate instead used the occasion to argue the existing law banning payments to surrogates, egg and sperm donors should simply be scrapped and replaced with rules against coercion and exploitation.
“I worry that when we talk about surrogates and gamete donors being expected to act purely from altruism, what we’re actually doing is appealing to the patriarchal expectation of gendered altruism,” said panel member Vida Panitch, an associate professor of philosophy at Carleton University.
“We tell them they can’t get paid because what they do is too valuable to have a price, while others pocket the profits.”But a debate panel member who was a consultant on the new draft legislation argued the law is right to ban payments because that accurately reflects Canadian values and principles.
As an example, Panitch cited the fact that 70 per cent of kidney donors are women and 70 per cent of kidney recipients are men.
“Women in our society are expected to be altruistic. The gender roles they are assigned are associated with actions and undertakings that are primarily beneficent in nature, and we criticize women who flout their gender norms.”
With the global fertility market worth approximately $20 billion a year and growing by near-double digits annually, it seems everyone is making money, except women in Canada.
“We tell them they can’t get paid because what they do is too valuable to have a price, while others pocket the profits.”
But a debate panel member who was a consultant on the new draft legislation argued the law is right to ban payments because that accurately reflects Canadian values and principles.
“I support this legislative commitment to having a system that is founded on altruism and not commercialization,” said Françoise Baylis, a research professor at Dalhousie University’s Faculty of Medicine.
“The world I want is one where we do not actively encourage people to put their body bits into the marketplace.”
The fact that Canadian women are already willing to become surrogates to help others—out of pure altruism and without being paid–—underscores why public policy should not give in to lobbying from self-interested market forces such as fertility clinics, lawyers and brokers who want the legislation changed to allow for a fee-for-service system, said Baylis.
“Surrogacy is a huge responsibility and an amazing gift, and it’s one of many good things in the world that we shouldn’t attach a price tag to,” said Baylis.
She pointed out that informed consent and autonomous decision making is too easily compromised when money is on the table. That’s the same reason why people are not allowed to sell their organs for transplantation.
“The goal should be to strengthen the current legal framework that permits reimbursement of expenses and allows a woman to give the ultimate gift of life without cost to herself and without potential compromise to her autonomy.”
But the argument for altruism does not hold up to scrutiny because people sell their bodies every day when they go to work, argued Panitch.
“There is no job you can do without your body. And we also praise things like art and even our healthcare system, and talk about them as a public good,” she said.
“The mere fact that something has a price tag doesn’t undermine the extent to which It can still be celebrated as a meaningful and important social good.”
The Assisted Human Reproduction Act was enacted in 2004 but some parts were subsequently struck down as unconstitutional in a court challenge by the Quebec provincial government in 2010.
The law makes it illegal to pay for sperm or eggs donated in Canada, but Canadians can buy them from fertility clinics in the United States where compensation is legal.
As well, surrogates in Canada aren’t allowed to charge for their services but can be reimbursed for medical and other expenses.
Those expenses aren’t defined in the existing law but the government’s proposed regulations extend an olive branch by clarifying the reimbursements that surrogates, sperm and egg donors can legally claim, said Baylis.
“In theory, Canada has had a system in place for reimbursements for a very long time but it’s never had a chance to work,” she said.
“I am excited for the regulations to come into play and allow us to work effectively within an altruistic system, just like other countries around the world that have similar health care systems and social values.”
In addition to medical expenses, the proposed changes would allow donors, surrogates or people transporting in-vitro embryos to be paid for expenses such as travel, legal or counselling services.
It would also allow surrogates to be compensated for lost wages during pregnancy.
But the red tape involved in claiming those expenses is too burdensome, said Panitch. “It puts surrogates in a position where they have to justify themselves.”
Panitch agreed with Baylis that the main threat posed by a legal payment system for surrogates and donors is coercion.
“But in this context, my worry with respect to coercion is not the stick but the carrot, the inducement,” said Baylis.
“And the question is at what point does the inducement become such that is not possible to refuse or walk away?”
If exploitation is the main concern of lawmakers then they should legislate against that and not threaten surrogates and donors with fines and jail sentences, Panitch argued.
In fact, the most effective way to legislate against coercion might be to advocate for a federal law establishing a basic income.
Research suggests that women are less likely to go into “intimate trades” like sex work when they have a regular income, she added.
“When we talk about things like sweat shop labour being exploitative, what we mean is that the workers aren’t getting paid or treated well and they are working in unsafe conditions,” said Panitch.
In a similar way, talking about paid surrogacy or egg donation as being exploitative suggests the real problem is an unfair distribution of the value that is created.
“We might even go so far as to say that the exploitation happens when someone isn’t paid while others get rich from the transaction.”
Although rarely enforced, the law imposes strict penalties of up to 10 years in prison and $500,000 in fines for convictions.
“Since nobody has yet volunteered to give me a price, let me put one out there,” she said, while making it clear she was simply playing devil’s advocate and still opposes payment under any circumstance. “Pregnancy is a 24-hour commitment, seven days a week for 40 weeks, and at a minimum wage of $15 an hour and accounting for 6,720 hours of work, the cost of the labour alone is $100,800,” even without addressing overtime, benefits or reimbursement for expenses, she said.
Panitch noted that a private member’s bill was introduced this past spring that would replace the prohibition against payment with penalties for coercion or uninformed consent. But the bill seems unlikely to pass, Panitch added.
“If what we are ultimately worried about is coercion and exploitation, then why don’t we just say that in the law? I think we can do that without criminalizing payment.”
Although the penalties may sound draconian, they are meant to target buyers who are violating the law, not surrogates and donors, Baylis countered.
She noted that in the 14 years the law has existed, only one person has been charged under the act, and that was a woman fined $60,000 for running an agency that offered paid surrogate services.
In a question and answer session after the debate, Baylis noted that nobody who was arguing to pay for surrogacy and egg donation were willing to say what they’d consider “fair” payment.
“Since nobody has yet volunteered to give me a price, let me put one out there,” she said, while making it clear she was simply playing devil’s advocate and still opposes payment under any circumstance.
“Pregnancy is a 24-hour commitment, seven days a week for 40 weeks, and at a minimum wage of $15 an hour and accounting for 6,720 hours of work, the cost of the labour alone is $100,800,” even without addressing overtime, benefits or reimbursement for expenses, she said.
“And I want to ask the audience, is that coercive or exploitative or is that simply a fair wage? If we’re not going to exploit these women, then surely you want to pay them at least minimum wage.”
Extending the analogy even further, she said if legal payment was the best way to address the current “unfair” system, then it would have to include all women who have given birth.
“If we’re saying this is valuable labour and people are doing it for free and they shouldn’t, then let’s change the whole world and pay everyone, not just the women who choose to be pregnant for nine months then give the baby away.”
Second year U of T Law student Emma Ryman asked Panitch if she feared Canada might become a destination for “surrogacy tourism” if it changed the law and allowed commercialization of reproduction.
Panitch responded that fear is why the law should focus on prohibiting exploitation, not payment for egg donors or surrogacy services.
“I do think there are lots of reasons to be worried about global surrogacy,” she said.
“I’m less worried about exploitation here at home than surrogates in other parts of the world who are making those decisions against a backdrop of limited options in a way that I do not believe is true of Canadian surrogates.”
