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When it comes to surrogacy, reproductive legislation should be amended to welcome the involvement of those with specialized training and expertise in managing the relationships between surrogates and intended parents, says Toronto fertility law lawyer Sara Cohen.
In a recent article for Creating Families, the magazine of the Infertility Awareness Association of Canada, Cohen says the Assisted Human Reproduction Act’s prohibition on “paying or accepting consideration for arranging for the services of a surrogate mother” does more harm than good. Read Creating Families Article
While all provinces and territories have laws that prohibit, in effect, buying children through adoption, for example, Cohen notes that it is legal for adoptive parents to pay an adoption agency for the costs incurred in arranging the adoption.
“The fact that it is illegal to pay to adopt a baby doesn’t make it illegal to pay an agency or a licensee to arrange the adoption,” she says.
In contrast, those who accept compensation or pay to arrange the services of a surrogate mother in Canada could potentially face severe criminal sanctions.
“It is unclear what good exists in the current prohibition on providing or accepting consideration for arranging the services of a surrogate mother. It is even more unclear as to why such an action warrants a sentence of up to ten years in jail and/or a fine of $500,000,” she explains.
“We do not expect birth parents and adoptive parents to have the tools, expertise, resources or objectivity to be able to find each other or choose the best “match” alone. Similarly, we ought not have these unreasonable expectations for intended parents and surrogate mothers,” she adds.
There are significant benefits to creating a licensing scheme whereby potential surrogate mothers and potential intended parents could rely upon the knowledge, expertise and training of individuals to find each other, choose each other and work together, much like the services available for birth parents and adoptive parents, she says.
“How much safer, healthier and less fraught with power imbalance would surrogacy in Canada be if surrogate mothers and intended parents, like adoptive and birth parents, could work with licensed individuals who had acquired specialized training and expertise in dealing with the complicated relationships involved in surrogacy?” asks Cohen.
“The relevant legislation ought to be amended to welcome, instead of potentially criminalize, the support and involvement of people who have specialized training, education, knowledge and expertise in managing the relationships between surrogates and intended parents, including helping these people find each other and choose the best match, that will make the surrogacy experience the healthiest it can be,” she adds.