In the United States, surrogate mothers can get paid anywhere from around $40,000 to $50,000, but in Canada, surrogate mothers are lucky if they get all their expenses covered. Canadian law criminalizes paying surrogate mothers with stiff fines and jail time. But it's time we updated the laws on the books, because not paying surrogate mothers infringes on the reproductive choices of Canadian women.
Rather than celebrate surrogate mothers, Canadian law criminalizes paying them for their much-needed services. When asked why Canadian women might choose to be surrogate mothers, Sara Cohen, a lawyer and the founder of Fertility Law Canada, admits that it's a question she gets a lot but doesn't love. "No one asks foster parents what motivates them to be parents, but we laud them for the wonderful service they are doing," she tells SheKnows. "Typically surrogates in Canada are people who have already had children, have easy pregnancies and feel empathy for someone who cannot have a child. They do it because they are proud of doing something good for the world, they want to help, etc."
The prohibitions surrounding commercial surrogacy are hotly debated. A group of doctors, lawyers, professors and students from Canada's health, education and legal communities recently gathered together to discuss the criminalization of commercial surrogacy in Canada at a McGill University conference on assisted reproduction. At that conference, Cohen called the existing regulations "paternalistic and offensive."
While prohibitions criminalizing the payment of surrogate mothers may be intended to protect marginalized women and those who are being coerced into surrogacy, they actually hamper women's right to choose what to do with their bodies. Cohen pointed out at the conference that "most women acting as surrogates are altruistic, self-sufficient, independent thinkers" — not marginalized women in need of protection.
At the conference, Professor Margaret Somerville expressed concerns that paying these women could open doors for human trafficking of babies. "The human life is precious and must never be made a commodity,” said Somerville. She also stressed the need for informed consent when it comes to choosing to be a surrogate mother. However, I'm having a little trouble with her "life is precious" line of argument. Of course I believe in the value of life, but this is a similar tactic employed in arguments to criminalize abortion or consensual sex work, often to the detriment of women's health and autonomy.
Cohen doesn't feel that arguments against commercial surrogacy that warn against the commodification of the human body hold weight. "This argument is based on the false idea that Canadians see commercialized third-party reproduction as something immoral. I don’t think that is the case at all. In fact, perhaps it is more immoral to not allow payment."
Many in the legal community can agree, however, that the current regulations are fuzzy when it comes to knowing what expenses one can repay a surrogate mother for.
"You can reimburse someone for expenses, but you cannot pay them for their contributions," explains University of Manitoba law professor Karen Busby in an interview with The Globe and Mail. "You can pay them for the taxi to get to the clinic. You can pay for days off work while they recover after extraction of eggs or a babysitter for their own children," she adds. But you "can’t pay them $20,000 for services rendered."
These unclear policies are problematic. "What I think you can reimburse and what someone else thinks you can reimburse might be two different things. But the problem is that the potential consequence of getting it wrong is 10 years in jail and/or $500,000. It’s craziness," Cohen tells The Globe and Mail.
So what should Canadians do? Cohen suggests scrapping the prohibitions surrounding the buying and selling of surrogacy services at the very least. Her best-case scenario? "I would propose getting rid of the AHRA [the Assisted Human Reproductive Act, which criminalizes commercial surrogacy, among other activities]," she says. The Act also prohibits lots of super-sketchy activities, ranging from human cloning to implanting non-human life forms in a human woman's womb(!) — Cohen feels the Criminal Code would be a better place for many of the prohibitions in the Act that should remain illegal. She stresses that she does feel that surrogacy needs to be regulated in Canada, "just not criminalized with such a blunt tool!"
I couldn't agree more. Come on, Canada — let's give surrogate mothers a fair deal. They're providing a valuable service to many families who can't have children on their own, and deserve more from their legal system than the threat of criminalization.
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