Gestational Surrogacy in Canada

Introduction: A Brief History of Surrogacy and Reproductive Technology Regulation in Canada To understand the story of surrogacy regulation in Canada, one must go back a quarter of a century to the appointment of the Royal Commission on New Reproductive Technologies (Royal Commission) [1,2]. In keeping with international practice, Canada’s strategy was to undertake a thorough study of assisted reproduction, including surrogacy – its practice, its effects, and the attitudes and fears it provokes – before settling on a regulatory approach [1]. To that end, the Royal Commission was appointed in 1989 with a mandate to explore the social, ethical, legal, and economic implications of new reproductive technologies and to recommend a suitable sociolegal response [1,2]. Canada’s Royal Commission was established a few years after the birth of Louise Brown, which signaled the dawning realization of the power and potential of reproductive technologies. New medical technologies commonly evoke feelings of fear and revulsion, and the new reproductive technologies were no exception in that regard. But these technologies are exceptional in that they not only make it possible for infertile heterosexual couples to conceive, but they also make imaginable all kinds of new reproductive and familial arrangements. In addition, then, to the anxiety related to a new technology with the potential to advance medicine and science, there was distinct unease about the social meaning of these new technologies [1]. Canada is not remarkable for deciding to study reproductive technologies and their implications for society before adopting a regulatory approach, but the trajectory and timing of Canada’s regulatory history deserve some attention. As noted, the Royal Commission was appointed in 1989. It reported on its findings and recommendations in 1993, after four years of discord and disagreement. Canada did not pass its first law aimed at regulating reproductive technologies (including surrogacy) until 2004 (the Assisted Human Reproduction Act [AHR Act]) [3]. The intervening 11 years between the Royal Commission’s report and the AHR Act involved debate and critique, as well as four failed attempts to legislate. One reason for the long interval between the Royal Commission’s work and the enactment of legislation is Canada’s constitutional structure. Canada is a federal jurisdiction, meaning that constitutional responsibility for making laws is shared between the federal government, on the one hand, and provincial and territorial governments, on the other [1,2,4]. Although jurisdiction over “health” is not explicitly granted to provinces and territories by the Constitution, healthcare regulation is widely understood to be within the area of responsibility of these regional governments. The Royal Commission recognized this but was unequivocally committed to the view that Canada needed a uniform national response to the legal and ethical concerns generated by reproductive technologies [1,2]. Because the federal government lacks the power to regulate in the areas of health and healthcare, the only legitimate way to ground federal governance was through the federal criminal-law power. These constitutional considerations, in part, explain why Canada has had so much difficulty regulating in this area at all. They also shed light on the decision to adopt a regulatory model that involves a significant criminal-law component, as detailed later in this chapter.