By Maria Coluccio

“Preventing the Commercialization of Reproduction: Canada’s Assisted Human Reproduction Act (AHRA)”

The world of healthcare is always growing, and healthcare technologies are evolving at a
faster pace than their regulations. In 2004, Canada passed the Assisted Human Reproduction Act (AHRA) in order to monitor, regulate, and enforce Assisted Human Reproduction research and activities. One of its most controversial provisions is the criminalization of payment for sperm, eggs, or the services of surrogate mothers.

Violators face strict penalties of up to $500,000 or a 10-year prison sentence. Because of its significant implications, the act was a hot topic at McGill Journal of Law & Health’s eighth Annual Colloquium.

The AHRA was enacted in an effort to reduce the commercialization of reproduction.
Exchanging payment for sperm, ovum, and surrogate services can turn assisted reproduction into a commodity. In other countries, poor and underprivileged women are exploited for these reasons. Some professionals compare the payment of surrogate mothers to the highly controversial organ trafficking trade: both commercialize human beings by reducing them as a means to an end. Individuals are more than mere parts that can be purchased and sold.

Criminalizing the payment of these fertility services ensures that individuals donate their sperm and ova voluntarily, and women acting as surrogates are doing so for altruistic reasons and not financial coercion. It also ensures that human life and reproduction is not commodified.

Opponents of the AHRA argue that these regulations cause more harm than good, both
for the surrogate mothers and future children. The AHRA was enacted to protect marginalized populations. However, the other side of the debate believes that most of the participating women are not coerced or exploited. Sara Cohen, a Canadian fertility law lawyer and founder of Fertility Law Canada argues, “Most women acting as surrogates are altruistic, self-sufficient, [and] independent thinkers.” Cohen, and others, believes that these activities should be regulated and that criminalizing commercial surrogacy is “paternalistic and offensive.”

Another argument is that because AHRA, smaller groups of individuals donate anonymously. Because of this, banks often have large amounts of identical DNA. This may cause problems when individuals are receiving identical gametes as those given to others. Anonymous donations also make it more difficult to trace family lineage and learn more about health conditions that the child may be at a higher risk for.

As technology improves, legislation should as well. However, creating regulations that
account for the complex interests of the surrogates, parents, and children is difficult.
Discussions and debates, similar to the ones held at McGill Journal of Law & Health’s eighth Annual Colloquium, are a step in the right direction.

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