The law doesn’t keep up with science. There is often a lag between scientific developments and the advances made in science and technology. One such area is artificial or assisted human reproduction.
Science was leaps and bounds ahead of the law, and the old laws didn’t do much to keep up with the evolving situation.
A combination of statute and case law has emerged to address this. In 2004, the federal government passed the Assisted Human Reproduction Act.
This legislation starts with a set of declarations of principle by Parliament. The health and well-being of children born through assisted reproduction techniques is given priority in all decisions.
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It also states that for obvious biological reasons, these issues affect women more than men. Also expressed is concern about the trade or business in such matters.
It also prohibits activities such as implanting a human embryo into a non-human host.
Also prohibited is charging and/or paying someone for being a surrogate, or for being a broker.
Purchases of embryos and gametes are also banned, but the reimbursement of expenses would be allowed.
The law in this area has forced some people to leave Canada to arrange to have children.
In India, there is a brisk trade in surrogacy, where the payment for such things is not prohibited by law. Women will carry children to term and deliver them for $1,500 to $5,000.
The reimbursement of expenses alone in Canada can exceed $20,000.
The uncertainty of a person’s legal rights in foreign lands means a high degree of uncertainty regarding the legal status of the child in the surrogate’s womb and after its birth.
In addition to legal concerns, there can be medical and scientific issues. Standards are frequently lower in other countries.
An Ontario couple travelled to India for a surrogacy arrangement, where twins were born and delivered healthy. After birth, they discovered the woman’s eggs were used for both children, but the husband’s sperm was only used for one, while the lab mistakenly used someone else’s sperm for the other child.
As a result, custody and legal rights respecting that child arose, which took months and thousands of dollars to iron out.
Work is underway to deal with such issues. Hopefully this will result in certainty in such transactions, and allow parents and other claimants to avoid costly and emotionally devastating fights over children.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
