In a conversation about the legal implications of assisted reproduction – about surrogacy and multi-parent families – Allard Law Associate Professor Dr. Régine Tremblay keeps saying this: “It’s a bit puzzling.”
On the question of surrogacy, for example, Tremblay points out that it’s illegal in Canada to pay a woman to act as a surrogate — to carry a child for someone else. Yet surrogacy, an increasingly common arrangement, also sets off something of an economic bonanza. The health professionals who assist with in vitro fertilization or other fertility aids all get paid. The lawyers drafting often complicated surrogacy agreements get paid.
The agencies that match surrogates with would-be parents – a function that Tremblay describes as “straight-up illegal” in Canada – get paid a lot, up to $55,000 in known Canadian instances. “All of these people are in a constellation in which they charge for services, but the woman who is going to be pregnant will be reimbursed only (for expenses), and won’t make money. So, the ban on commercial services is effectively only targeting the surrogate – which is a bit puzzling,” says Tremblay, an expert in law and reproduction.
If Tremblay is puzzled, the rest of us might expect to be entirely bewildered. A “puzzle” is generally a test of ingenuity with a known solution, but there is no answer key in the thicket of personally, morally and ethically implacable questions raised by assisted reproduction. In the three-and-a-half decades Canadian governments have been trying to tame these issues with legislation, they have remained not just puzzling, but confounding. Still, progress has been made in legislating and litigating the issues of family formation and parentage that have emerged thanks to assisted reproduction.
On these matters, Allard Law alumni have been instrumental in helping to author innovative provincial laws and to clarify their interpretation through successful litigation.
Allard Law grad Dr. Fiona Kelly (LLM ’03, PhD ’08), now Dean of Law at the University of Alberta, was tapped to help draft BC’s Family Law Act (FLA; 2013), which made BC the first jurisdiction in Canada and one of the first in the world to permit children to have more than two legal parents at birth. Kelly was invited to work on the bill on the strength of her PhD research at Allard Law on parentage matters in law.
Leveraging and expanding the scope of that legislation, Catherine J. Wong (LLB ’07) was later counsel on the first BC case where a child conceived without the use of reproductive technology – through sexual intercourse – was recognized as having three legal parents.
A bumpy legislative history
Since the development of in vitro fertilization in 1978, the Canadian government has moved fitfully to legislate on the risks and concerns arising from reproductive technology.
It took more than a decade (until 1989) to launch the Royal Commission on New Reproductive Technologies, chaired by the medical ethicist and head of the UBC Department of Medical Genetics, Dr. Patricia Baird. The Royal Commission’s $28-million inquiry incorporated the input of 40,000 Canadians and culminated in 1993 with a 1,275-page report, Proceed with Care, which called for sweeping legislation to prohibit many practices in assisted reproduction and to regulate many more. And then, mostly, nothing.
The government took 11 more years to pass the resulting Bill C-13, the Assisted Human Reproduction Act (AHRA), in 2004. And that Act was largely struck down in 2010, when, in response to a Quebec challenge, the Supreme Court of Canada declared that most of its regulatory provisions overstepped into the provincial constitutional responsibility of regulating health care.
Tremblay points out that the surviving sections of the AHRA made it a criminal offence to pay for such things as surrogacy, sperm, eggs or embryos, with the aims of preventing commercialization of these reproductive components and processes and reducing the risk of exploiting women. In Canada, these provisions should have been framed following case law and precedents to clarify what is and is not legitimate.
Except, Tremblay says, there has been only one instance where charges were laid for prohibited activities regarding illegal payments. In 2012, the RCMP charged a woman named Leia Picard (now Leia Swanberg) and her company, Canadian Fertility Consulting.
As The Globe and Mail reported, “[h]er offences boiled down to paying money to egg donors for their eggs, paying money to surrogates for contract pregnancies and taking finder’s fees from an American lawyer who, unbeknownst to Swanberg, was running an elaborate baby-selling ring.” Swanberg pleaded guilty to three counts of charging for referrals to the US intermediary and was fined $60,000. However, she later told the Globe, thanks to the publicity brought on by the case, her business quadrupled, and no similar charges have been brought since.
Who’s your daddy (or your mom)?
There is also a quirk – or a mile-wide loophole – in the AHRA prohibition against paying donors in Canada for their gametes (eggs or sperm), which further complicates matters. Kelly says that Canada imports 99 per cent of its sperm from the United States, where donors are normally paid and can remain anonymous. This means that most children born in Canada via reproductive assistance cannot easily trace their lineage, even if there is a compelling case to do so for health reasons.
And the health case is compelling. In one American example, featured in the 2022 documentary Our Father, a fertility doctor used his own sperm to father more than 90 children through the 1970s and ’80s without his patients’ knowledge. In addition to this violation of consent, this left the donor-conceived adults, as Kelly puts it, “at risk of hooking up with their siblings.”
However, Canada can’t solve this issue simply by blocking donations at the border. Another recent documentary series, Père 100 Enfants, documented a Quebec case in which three men from the same family – two of whom carry a serious genetic disorder affecting the liver – fathered at least 600 children through an unregulated online sperm market.
Kelly notes that “there is a strong movement among donor-conceived adults that the identity of donors is important – for curiosity, as well as for familial medical history.” Legislators in Australia and Europe therefore require that donor information is collected and updated. Those jurisdictions also enforce single-digit limits on the number of times any individual donor’s reproductive material can be used.
But, again, Kelly says, as long as Canada is importing gametes, “You can’t make regulations because you don’t control the market — Canada can’t regulate an American sperm bank.” Any argument for protecting donor anonymity, says Kelly, fails on practical terms: Direct-to-consumer DNA testing means that anonymity “is all a false promise.”
Besides, “rather than putting it on the child, we have an obligation; the state has a responsibility to consider the interest of children and to gather and protect that information.”
Parental rights; parental responsibilities
The questions of parentage – who can be acknowledged legally as a parent; who gets to claim parental rights; and who wants to assume parental responsibilities – are more fluid and yet better defined under the FLA, which Kelly helped write.
The new law broke ground nationally and internationally in part because it recognized two things. First, assisted reproductive technology and the increasing acceptance of same-sex parenting have complicated the one-man/one-woman conception of the “nuclear family.” Second, traditional legal definitions of parentage concentrate on parents’ rights, while the FLA shifts the focus to responsibilities and to prioritizing the interests of the child.
Regardless of her contribution to the FLA — and perhaps thanks to the informed nature of her perspective — Kelly is critical of the current parentage law regime. She points out that while the FLA expanded the number of potential parents, it also set a limit of three, in a way that effectively promotes a heteronormative family model. For example, the most common type of multi-parent family is formed when a lesbian couple uses sperm from a male donor who all parties want as a partner in the parenting project.
While it’s good that the FLA makes this possible, Kelly also detects a judicial tendency to “find fathers” for children raised by two women. Moreover, the law in BC makes no allowance for a fourth parent, for example when one person each from a lesbian couple and a gay couple contribute genetic material and all four are fully committed to helping parent the child.
Opening the door to alternative family structures
Allard Law alum Catherine Wong, who practises family and fertility law and is a family law mediator and a collaborative lawyer, is a frequent drafter of fertility and parentage agreements. She also recently served as an expert on the BC Law Institute’s Report on Parentage, which made a number of recommendations to the Attorney General to modernize the FLA.
Wong says that while the law doesn’t currently recognize many non-traditional family structures, in her practice, she’s seeing more families looking to add parents and using assisted reproduction to create new family structures. In two of her current case files, she’s working with good friends who are using assisted reproduction and need to create co-parenting agreements. In both cases, the children will be living in intentional two-household families.
“It’s not that these families didn’t exist previously – it’s just now that these families are seeking legal recognition,” says Wong. Wong adds that both fertility and parentage agreements all involve “a big spiderweb of interconnected issues,” many of which can never be categorically resolved in a legal contract, and that this type of work is always going to be complicated.
“Families exist in all shapes and sizes, and I view my job as a way to make the law work for them as much as I can,” says Wong. It’s complicated, and legal change can be slow, but as with so many aspects of law, solutions are often possible and the effort is always worthwhile.
