The federal government has announced it will finally introduce regulations under the Assisted Human Reproduction Act (AHRA) to govern sperm and egg donation, as well as surrogacy, a move that could have important ramifications for LGBT couples who are planning to have children. The announcement was made on Sept 30, 2016, and government is accepting comments on the act until Nov 29.
The AHRA was introduced in 2004 by the Martin government in response to ethical concerns around then-emerging reproductive and genetic technologies. While the act formally banned the creation of clones, chimeras and hybrids — acts that for now remain the realm of science fiction — it also restricted activities that have become more common, including sperm and egg donation and surrogacy. Much of the act was repealed in 2012 by the Conservatives under Stephen Harper, after a 2010 Supreme Court judgment ruled that many of its provisions stepped over into provincial jurisdiction.
However, sections of the act that restrict donors and surrogates from being paid for their services still remain in force. Under the law, they can only be reimbursed for expenses that are enumerated under regulations that were never brought into force.
LGBT parenting advocates hope that the new regulations will clarify a legal grey area that many families and service providers have been operating under for years.
“All that lack of clarity makes it hard for qualified agencies like mine to help people, especially around surrogacy, and it really affects the availability of sperm donors in Canada,” says Andy Inkster of the LGBT Parenting Network at Toronto’s Sherbourne Health Centre. “We’d like to see surrogacy agencies come under the law and be regulated because then you could have standards of professionalism.”
The government is also proposing an update to regulations governing sperm and egg donation, including new regulations for testing and tracing donations. Some advocates are also hoping that the new changes will lift the discriminatory ban on sperm donation from men who have sex with men (MSM), which is based on the same outdated science as the MSM blood donation ban.
While gay men can donate sperm to a woman as a known donor, that woman would need to get permission from Health Canada to use it in a fertility clinic. Gay men are not allowed to donate anonymously under the current regulations, as are men who have used injection drugs, have been with sex workers, and those who have received tattoos or body piercings in the past year.
In addition, a woman using sperm from a known donor who is not a sex partner — for example, a lesbian and a gay friend — must pay to have his semen quarantined and wait six months before using it in a clinic.
“It’s a huge delay and it’s costly. It’s been an area that people have been talking about that’s discriminatory, because it’s the same health risk if you’ve been inseminating at home. We’ve been lobbying for years to get this changed,” says Rachel Epstein, a Banting postdoctoral fellow at Brock University and longtime LGBT parenting activist.
Draft regulations proposed by the Canadian Standards Association would reportedly resolve much of this discrimination. They would also create a registry of donated gametes, so that recipients can be aware of any potential health issues that may arise in offspring.
“Health Canada should talk to families and sperm and egg donors to talk about the information that should be collected and how it should be released,” says Angela Cameron, a law professor at University of Ottawa. “So for example, health information should be allowed from time of birth, but maybe identifying information wouldn’t be released until later.”
New regulations are unlikely to resolve all the legal controversies around LGBT parenting in Canada. There remains deep division over whether donors and surrogates should be allowed to be paid for their services in the country. Both are legal in the United States, which is where most of Canada’s donated gametes are actually sourced.
But while this may address a practical need, there remain questions around selling reproductive services.
“Commercializing aspects of the human body raises all sorts of ethical questions,” says Cameron. “I think we should stick with altruistic gamete donation and surrogacy, but set up a system where we can fairly recompense people for the expenses they incur.”