On Feb. 6, the McGill Journal of Law and Health held its eighth-annual Colloquium, with this year focusing on legal and policy issues concerning assisted reproduction in Canada. The discussion was held by well-known professors, lawyers, and physicians—all meeting to debate and discuss hot topics in Canadian bioethics surrounding reproductive rights. This year’s panel was titled Assisted Reproduction: Navigating the Criminalization of Commercial Surrogacy, and focused on Canada’s decision to make it illegal for surrogates to be paid to carry someone else’s child, eliciting much debate among Canadian scholars and practitioners of bioethics.
The discussions centred on the federal Assisted Human Reproduction Act (AHRA), which criminalizes the payment of surrogate mothers, setting penalties between $500,000 or a 10-year prison sentence if violated. Surrogates agreeing to carry another couple’s child are to do so entirely altruistically. Since its passing in 2004, the AHRA has exposed rather polar views amongst leaders in Canadian public health ethics.
One of the speakers, Canadian fertility law lawyer and Founder of Fertility Law Canada, Sara Cohen, argued that the act of commercial surrogacy should be regulated rather than criminalized.
“[This law was created to] protect marginalized women from engaging in surrogacy because they felt they had no choice,” Cohen said. “But most women acting as surrogates are altruistic, self-sufficient, [and] independent thinkers.”
Instead of protecting women, Cohen explained, these laws are ‘paternalistic and offensive.’
The AHRA also prohibits the selling of sperm and ova for reproduction—instead, donors must voluntarily make their contribution to banks, and often do so anonymously. As a result, few individuals donate sperm or gametes, often creating banks with tissues of redundant genotypes (identical DNA). Some birth-mothers therefore receive identical gametes as those received by others, unknowingly giving birth to biological half-siblings. The anonymous nature of many of the donations also makes family lineage nearly impossible to trace, leaving the child’s family health history unknown. According to Cohen, decriminalizing the selling of reproductive tissues would give patients more information, enabling them to make safer decisions.
Arguments challenging this opinion take the exact opposite stance; Professor Margaret Somerville from the McGill Faculties of Law and Medicine and founding director of the McGill Centre for Medicine, Ethics, and Law, argued that not all surrogates are able to give informed consent.
“Most cases of surrogacy in other countries are based on exploitation of poor, vulnerable women,” Somerville said. “Surrogates are often described as altruistic in the advertisements seeking to recruit them.”
According to Somerville, commercial surrogacy is a violation of women’s rights, opening the door to the creation of a breeder class of underprivileged women using their reproduction organs for profit.
While this argument ventures close to the arguments used by proponents against legalizing prostitution, Somerville further reasoned that ethical issues should always focus on the most vulnerable party involved—the child. Commercial surrogacy can also be dehumanizing by creating reification and commodification of a child and therefore, of human life. Somerville compared the issue to organ trafficking by using human beings as means to an end.
“The human life is precious and must never be made a commodity,” Somerville said.
The consequences of the AHRA do pose issues for intending parents unable to conceive, yet also paint an eerie image of commodifying human life. The juxtaposition of ethical views at the colloquium posed an interesting discussion, but left many uncertain of their opinion on the topics deliberated. Still, discussion among contrasting views on public health policy must continue to take place, as the field of bioethics takes on an increasingly important role in our modern biomedical society.
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