Fertility law is a complicated area, according to some experts. – Dylan Hewlett
Canada’s laws on surrogate motherhood are facing criticism after a Canadian surrogate mother was left holding a pair of twins when the would-be parents changed their minds.
Cathleen Hachey, from Bathurst, N.B., was 27 weeks pregnant with twins when the British couple expected to take them said they no longer could. The two said they had separated.
But although some media reports suggested surrogate mothers could be protected by legally binding contracts if paid surrogacy were legal in Canada, the reality is much more complicated.
“It’s quite a complicated area, fertility law,” said reproductive law specialist Sara Cohen. “Especially since the Supreme Court of Canada struck most of the Act. There’s a lot of blanks, so you’ll hear many times how foggy the whole area is.”
Cohen advises potential surrogate mothers that it is much safer for themselves and for the parents to choose a gestational, rather than a traditional surrogacy.
A traditional surrogate becomes pregnant through artificial insemination, and is the baby’s biological mother. In a gestational surrogacy, a fertilized egg from the intended mother or another donor is implanted in the surrogate.
Because surrogate and baby are not genetically related, it creates less uncertainty about whom the legal mother will be.
Only four Canadian provinces have laws dealing specifically with registration of surrogate births, and none have procedures to expedite the process, University of Manitoba law professor Karen Busby wrote last year in the Canadian Journal of Family Law.
According to Busby, the situation leads would-be parents to head for the most favourable jurisdiction, expecting surrogate mothers to relocate just before giving birth.
While pre-conception contracts for surrogates are largely a provincial area, the Federal Assisted Human Reproduction Act is accused of confusing rather than clarifying the issue. Under the Act it is illegal to pay or be paid for surrogate motherhood, or to charge a fee to match would-be parents with a surrogate.
Sally Rhoads-Heinrich runs a service in Toronto for surrogate mothers and future parents of surrogate babies. She said the wording of the federal Act is confusing. People think it is illegal to advertise at all, when it is only illegal to advertise to pay for surrogacy.
Rhoads-Heinrich said the law is meant to prevent men from forcing their wives to be surrogates against their will, particularly low-income and immigrant women. However, she doesn’t see that as a real threat. She has never seen a recent immigrant become a surrogate, and believes it doesn’t happen because of stigma.
Research Busby published in the Canadian Journal of Family Law last year supports Rhoads-Heinrich’s position.
“The profile of surrogate mothers emerging from the empirical research in the United States and
Britain does not support the stereotype of poor, single, young, ethnic minority women being pressured by family, financial difficulties or other circumstances into something they do not want to do,” she wrote.
“Rather, the empirical research establishes that surrogate mothers are mature, experienced, stable, self-aware, extroverted non-conformists who make the initial decision that surrogacy is something that they want to do.”
Busby believes the federal criminal law is too blunt an instrument, and should be replaced by provincial regulations.
She recommends paid surrogacy, instead of being illegal, be restricted to carefully screened women who have already given birth to children of their own.