Hon. Lucie Moncion, pursuant to notice of November 24, 2021, moved:

That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report on the Canadian assisted human reproduction legislative and regulatory framework and any other related issues deemed relevant by the committee, when and if the committee is formed; and

That the committee submit its final report on this study to the Senate no later than October 31, 2023, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

She said: Honourable senators, I rise to speak to the motion to authorize the Standing Senate Committee on Social Affairs, Science and Technology to examine and report on the Canadian assisted human reproduction legislative and regulatory framework and any other related issues deemed relevant by the committee. The motion also states that the final report must be submitted no later than October 31, 2023.

I made the decision to proceed through a motion based on a suggestion made in this chamber by Senator Seidman, who was the critic for Bill S-202 in the last Parliament. I would like to thank her for offering to support me if I proposed a study in committee so that the Senate could examine all aspects related to assisted human reproduction in Canada. I will quote what Senator Seidman said on June 8, 2021:

[English]

Honourable senators, a national conversation about Canada’s assisted human reproduction laws is long overdue. We must draw on the expertise of nations such as the United States, United Kingdom, India and others, who have studied assisted human reproduction and best practices for years. We are not short of sound evidence. Like Senator Moncion, I, too, agree that this is an opportune time to carefully study and review this subject matter, so that we can modernize our policies to reflect the current day.

[Translation]

In that vein, honourable colleagues, the purpose of my speech is to convince you of the merits of a motion to conduct a comprehensive Senate study on assisted human reproduction as soon as possible. This study is needed in order to identify solutions for bringing the objective of the Assisted Human Reproduction Act more into line with its actual effects.

In conjunction with this full and comprehensive study, I will also soon be introducing a bill to decriminalize payment for gamete donation. I see that I will have to narrowly define the objective of my bill in order to be able to raise awareness and to educate even more senators and Canadians about these issues. Moving forward with a bill that is strictly related to the legislative framework for gamete donation seems appropriate in the circumstances.

In previous Parliaments, I gave speeches about a bill seeking to allow the provinces and territories to regulate those aspects of assisted reproduction that are still criminal offences today, with a view to decriminalizing payment for gamete donation and surrogacy under certain circumstances. At the time, beyond my proposed bill, I attempted to demonstrate that, by criminalizing payment, the current legislation provides no way to ensure the health and safety of children born through the application of assisted human reproductive technologies, surrogates and gamete donors. Criminalization encourages a culture of silence, thus increasing the risk of all manner of abuse and exploitation.

In this speech, I will first of all describe Canada’s existing assisted human reproduction legislation. I will then highlight certain problems that could be studied in committee. For example, the current legislative framework does not provide adequate protections for children born through the application of assisted human reproductive technologies, surrogates and gamete donors.

Second, Canada’s legislative framework is fundamentally contradictory because it fosters and facilitates reproductive tourism for commercial purposes in other parts of the world. The best example we have at present is the situation in Ukraine.

Third, I will set out the evidence that shows why the issue needs to be studied again using up-to-date information and setting aside the beliefs and theories that shaped the legislative framework that has been in place for almost 20 years.

[English]

Let me briefly present the state of the law in Canada.

First and foremost, it is illegal to pay for ova or sperm donations. It is also illegal to pay a surrogate, but it is legal to reimburse her for certain pregnancy-related expenses, such as additional food, clothing, vitamins and transportation costs incurred in travelling to medical appointments.

To give a mundane example, it is criminal to buy flowers for a surrogate while she is pregnant. It is also against the law to pay a donor. If found guilty of violating the Assisted Human Reproduction Act, an intended parent can face up to 10 years in prison and fines of up to $500,000. Intended parents are afraid of the legal consequences of reimbursing ineligible expenses under the Assisted Human Reproduction Act and are forced to deal with agencies not currently regulated.

Whether we are for or against surrogacy or gamete donation, the altruistic system currently in force in Canada is flawed and must be improved. Many experts say we are behind and should learn from experiences abroad.

My concerns regarding the health and well-being of women and children born through the application of human reproductive technologies in Canada, but also around the world, are the primary reasons why I firmly believe these issues must be further studied.

The current criminal legal framework is inadequate and at the root of various health and safety issues we have witnessed in the world of assisted procreation. These women may experience very serious complications and face psychological risks.

Donors can develop ovarian hyperstimulation syndrome and long-term risks such as infertility, chronic disease or cancers. Surrogates can experience gestational diabetes, hypertension or potential damage to reproductive organs and any other health risk associated with being pregnant. These can be experienced by donors and surrogates in an altruistic system and a commercial system. The health risks do not discriminate based on whether someone is being compensated or not.

The current legal framework can, in theory, expose someone to serious penalties for simply making an unintentional mistake. The criminal framework encourages a culture of silence — the perfect fuel for abuse or negligence of all kinds. The lack of regulations and the culture of secrecy fostered by the criminalization of certain aspects of assisted reproductions are to blame. In this unregulated practice, agencies operate with very little guidance. The question that begs to be asked is: Why are we so focused on regulating the money while turning a blind eye to a health crisis?

[Translation]

The major principles set out in section 2 of the Assisted Human Reproduction Act are as follows:

As I explained in my introduction, the purpose of this motion is to formulate recommendations that will bring the intention of the bill back into line with its real-life effects. The idea is to propose a legislative framework that will implement guidelines to protect the health and safety of women and children and prevent abuse.

[English]

I will now talk about surrogacy and agencies. With respect to surrogacy, when it comes to the health and safety of women, but also to the ability of intended parents to be vocal when there is abuse, it is important that the agency be regulated. Agencies are currently completely unregulated, and likely to remain unregulated, as long as section 6(2) and 6(3) of the act still exist.

The criminal nature of the prohibition prevents the provinces and federal government from fully regulating the practice and pushes it behind closed doors for fear of legal repercussions.

In Reference re Assisted Human Reproduction Act, the Supreme Court of Canada found that licensing and regulation requirements were ultra vires the federal government’s powers, and they are correctly within the provincial government’s powers.

The committee should study these issues of jurisdiction and make a proposal that would respect the provinces and territories while better understanding the limits in which the federal government can legislate. How do we ensure that the potential decriminalization can be done in a way that is safe for everyone and without unintended consequences?

With respect to gamete donations, it is against the law to pay a donor under section 7(1) of the act. Ironically, Canada allows gametes to be imported from other countries, even if the donors there are paid. That explains why about 90% of sperm donations in Canada are from the United States, and only 5% to 10% are from Canadian donors. By supporting imports, the government is relinquishing oversight of the legal framework governing the collection of most gametes found in Canada’s sperm and ova banks.

Legal uncertainty does no one any favours. It increases the risk that vulnerable people will be exploited and make uninformed decisions owing to the unequal power relations involved in using alternative means of procreation. In addition, improving access to alternative methods of reproduction supports equality between couples who have no difficulty conceiving and all other people, such as infertile couples, same-sex couples and single people.

[Translation]

We recently invited senators to watch the documentary The Secret Society and organized a question-and-answer session with the filmmakers and some of the subjects of the documentary. This documentary shines light on certain aspects of egg extraction from women who, for altruistic reasons, choose to undergo invasive hormone therapy to donate eggs. I encourage you to watch this documentary, which gives a lot of information on the current system and on the medical procedures women have to go through to donate eggs for altruistic reasons.

The film shares the story of couples with fertility problems and describes the processes they go through and the costs involved in becoming parents. It also shows that the current legislative framework for altruistic egg donations does not prioritize the health and well-being of donors. This highly invasive procedure, which is both physically and mentally taxing, must be better regulated, and these women must be better protected. The criminalization of payment makes it hard to regulate the practice properly. I urge you to watch this documentary to better understand what goes on behind the scenes in Canada’s gamete donation system and to understand the very serious and dangerous consequences of a culture of silence.

It’s important to look at the impact that Canada’s legislative framework is having on the behaviour of Canadians abroad and the scope of its consequences. Our legal system creates collateral damage beyond our borders by heightening the inequalities among people around the world and increasing the exploitation of women elsewhere in the world.

[English]

The difficulty in accessing gametes and surrogacy services in Canada, attributed to our criminal legal framework, cultivates the exploitation of poor and racialized women abroad who face an increased and pervasive risk of exploitation. Many Canadians travel to other countries because they lack access to surrogates or gametes domestically. For example, Canadians who wish to use alternative methods of assisted reproduction are often unsure and afraid that an ineligible expense may be seen as an illegal payment. This encourages people to travel to other countries with more relaxed rules to use the services of a surrogate mother and to obtain gametes.

[Translation]

The actual impact of the implementation of the legislation does not line up with its objective. Paragraph 2(f) of the Assisted Human Reproduction Act states:

trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition;

However, the act allows and facilitates elsewhere in the world what it prohibits in Canada. The consequences are even more serious abroad, in countries with more precarious legal protections and health care systems.

The pandemic and now the war in Ukraine have highlighted the collateral damage of the globalization of assisted human reproduction and reproductive tourism. In my last speech, I mentioned that around 100 babies born to surrogate mothers were stranded in Ukraine because their adoptive parents could not pick them up when the borders closed. The adoptive parents, surrogate mothers and children were all harmed by this situation at the beginning of the pandemic.

Now a similar problem has arisen in the context of the war in Ukraine. Ukraine allows paid surrogacy and regulates the practice. Its permissive legal framework is attracting intended parents from Canada. Anyone who watched the news last night may have seen reports of babies who are stuck in Ukraine.

Hon. Lucie Moncion: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Senate recognize that, each year, thousands of Canadians are called to jury duty and contribute to the Canadian justice system; and

That the Senate call upon the Government of Canada to designate the second week of May in each year as Jury Appreciation Week in Canada, to encourage those Canadians who provide this public service and to recognize their civic duty.

[English]