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Reconsidering Assisted Human Reproduction Act prohibitions | Shidvash Bayat and Zeina Husseini

Friday, July 09, 2021 @ 11:32 AM | By Shidvash Bayat and Zeina Husseini

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Shidvash Bayat
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Zeina Husseini
The Assisted Human Reproduction Act (AHRA) is Canada’s governing framework regulating the purchase and sale of human eggs. Section 7 of the AHRA stipulates that no person can purchase, offer to purchase or advertise for the purchase of an egg from a donor or a person acting on behalf of a donor. The prohibitions indicate that eggs, “cannot be bought, sold or exchanged for goods, property or services” (see Government of Canada, “Prohibitions related to Purchasing Reproductive Material and Purchasing or Selling In Vitro Embryos”).

Despite these prohibitions, the AHRA has failed to prevent the commercialization of egg donation and has instead undermined the safety of Canadian women. The AHRA’s prohibitions have not only created taboos around egg donation and purchasing, but it has contributed to the major lack of supports in the health-care system for egg freezing and other infertility care treatments.

The AHRA’s position against commercial egg donation reflects the popular public policy argument that the commercialization of women’s “reproductive capacity is inherently unethical” (see Alana Cattapan, “Risky Business: Surrogacy, Egg Donation, and the Politics of Exploitation” at 11). The basis for this belief is largely centred on a study by researchers Margrit Eichler and Phebe Poole, where they described around 118 surrogacy cases involving Canadians and analyzed 32 surrogacies handled by a renowned American surrogacy lawyer. The study concluded that people who commissioned surrogate mothers were more educated and richer than their surrogates. (See Eichler and Poole, “The Incidence of Preconception Contracts for the Production of Children Among Canadians: A Report Prepared for the Law Reform Commission of Canada.”)  

It is noteworthy that this study is often the only Canadian-based research used by Canadian parliamentarians regarding exploitation in surrogacy and egg donation arrangements. As a result of this, when it comes to egg donors selling their eggs, Canadian policy makers perceive that donors are being pressured into selling their eggs out of financial necessity to rich buyers.

This has of course led to the dominant view that surrogates and egg donors are exploited in commercial settings. This is a problematic generalization as there is no direct link through data or witnesses and no Canadian academic study on commercial egg donation to prove that this practice has led to widespread exploitation.

Rather, Canadian public policy arguments promote a patriarchal and simplistic outlook that women can only make independent and well-informed decisions about their bodies when payment is absent. The AHRA prohibitions fail to consider how non-commercial reasons for egg donation may lead to the exploitation of women.

Other than money or material compensation, intrafamilial reproduction can sometimes force women into donating their eggs due to guilt, duty and gendered sociocultural vulnerabilities. Professor Rakhi Ruparelia provides the example of women who must often deal with family hierarchies placing daughters and daughters-in-law at the bottom (see Rakhi Ruparelia, “Giving Away the ‘Gift of Life’: Surrogacy and the Canadian Assisted Human Reproduction Act,” Canadian Journal of Family Law, Vol. 23 No. 1 (2007): 11-54). These women would typically be most susceptible to coercion and pressure to undergo egg donation against their will. To establish themselves within the family, these younger women must often yield to higher ranking women in the family who may suggest that they have kids for others in the family through fertility arrangements.

In this instance, it becomes clear that egg donation, even without being commercialized, can be coerced rather than voluntary and can lead to the exploitation of women.

Furthermore, by outlawing commercial egg donation and placing criminal sanctions, the AHRA has instead pushed Canadian donors and their clients to the United States, undermining the objective of the Act. Going across the border often means engaging in underground arrangements that can lead to potential dangers. For instance, some women have been exploited by brokers who threatened to withhold payment should the donor not go through with the arrangement (see Claire Burns, “We are Egg Donors”).

We are at a juncture right now where the demand to engage in egg donation and sale is only increasing. In fact, the Center for Human Reproduction (CHR) based in New York explains that more Canadian women have been crossing the border and coming to their centre over the years because they offer immediate matching of donors without a wait list, and access to more information and support during the egg donation process.

Furthermore, in a recent viral news story, a couple in their 30s plastered advertisements across the University of Toronto’s campus seeking a college student to be an egg donor. The advertisement was soliciting a commercial egg donation but was able to avoid the AHRA prohibitions by offering reimbursement of donation expenses rather than direct compensation.

Canadians turning towards these options only demonstrates how individuals have been able to bypass the AHRA prohibitions and still enter commercial agreements between egg donors and buyers.

Globally, the commercialization of eggs has grown beyond the realm of treating just infertility. In the United States, large corporations are increasingly incentivizing their employees to freeze their eggs. Facebook offers up to $20,000 in benefits for its employees to freeze their eggs, while Apple in 2014 released an announcement that it would also provide coverage for its employees. The goal of these initiatives is to push women to focus on work and delay having a family until a later time.

Although such instances have not yet appeared within Canadian companies, the situation in the United States marks the growing commercialization of women’s eggs that could easily spread into Canada. With these practices only gaining popularity around the world, the AHRA prohibitions do nothing to stop Canadian companies from following the lead of American companies and offering monetary incentives for their employees to freeze their eggs.

The AHRA prohibitions banning direct compensation to egg donors has only held back the supports for individuals who want to engage in assisted human reproduction in Canada. In fact, as reported in a CBC News article, a fertility clinic in Halifax outlines how individuals seeking egg donations can expect to pay a minimum of $29,000 to receive eggs coming from the United States (see “Atlantic Canadians no longer need to leave region to find an anonymous egg donor”). The clinics can once again bypass the AHRA prohibitions on compensating egg donors by paying the American egg banks who own the eggs rather than the donors directly. The law is then only adding a layer of semantics that drives up costs and creates unnecessary barriers.

It is imperative that we move past the AHRA’s archaic prohibitions so that the government can implement supports for egg donation, purchasing and freezing, along with establishing financial support programs to make sure that women from a lower socioeconomic status have the means to access egg purchasing without having to turn to unregulated sources.

Denmark is an example of a country with these supports where the government helps individuals cover the costs of egg freezing, and in vitro fertilization (IVF) treatments. The government’s support of fertility clinics in Denmark has heightened the standard of care when it comes to infertility treatment to the point that individuals travel to the country from all over the world for infertility treatments.

This is in stark contrast with Canada where the only province to offer any kind of support is Ontario, which is still limited to just financial aid for women who have a medical reason prompting them to seek fertility preservation.

A major step towards building the appropriate supports and necessary funding is to remove the unnecessary prohibitions against the commercial egg trade and move past the idea that donors are vulnerable and being taken advantage of. By removing the AHRA prohibitions and replacing them with proper supports, individuals involved in the different aspects of infertility treatment can receive proper protection.

Shidvash Bayat is a BCL/JD candidate at the McGill Faculty of Law. He has built extensive legal knowledge working in three legal clinic placements, completing legal internships, and recently publishing an article in the Canadian Class Action Review titled Addressing Systemic Abuse in Quebec Long-Term Care Homes: The Class Action Solution. Zeina Husseini is a BCL/JD candidate at the McGill Faculty of Law. She has gained experience across three legal clinic placements in Montreal and completed legal internships at various organizations.

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