Title

Why the Government of Canada Won't Regulate Assisted Human Reproduction: A Modern Mystery

Document Type

Working Paper

Publication Date

12-8-2019

Abstract

The Canadian Assisted Human Reproduction Act AHR Act passed in 2004 prohibits both paying consideration to a surrogate mother and purchasing sperm and ova from a donor sections 67 Both prohibitions are subject to section 12 which was intended to permit reimbursement of expenditures incurred by surrogate mothers and gamete donors and reimbursement for loss of workrelated income for surrogate mothers Remarkably more than ten years after the AHR Actreceived Royal Assent and in spite of repeated calls for greater legal clarity Health Canada has not drafted regulations pursuant to section 12 of the AHR Act which is not yet in force In this paper we speculate as to possible reasons why the Conservative government 20062015 did not draft regulations and we explain in turn why each of the possible reasons for inaction is flawed In light of our rejection of all of the reasons we could imagine we argue that Health Canada should both explain and justify its failure to draft the regulations that would set the stage for Parliament to bring section 12 into force It must do so if the federal government is to meet the AHR Act‘s goal of protecting children women and men engaged in or affected by surrogacy and thirdparty egg production

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