Workshop Participants

Karen Busby, Professor of Law and Director Centre for Human Rights Research, Faculty of Law, University of Manitoba
Cross-border surrogacy: What can Canadian law do to protect surrogate mothers in other countries?
Federal laws on citizenship facilitate the issuance of passports for children born to offshore surrogate mothers for intended Canadian parents as long as one of the intended parents has a genetic link to the child. Canadian law does not concern itself with any other aspects of offshore relationships among the surrogate mothers, egg or sperm donors, healthcare providers and intended parents. This paper will consider what, if anything, Canadian law can do to better protect those who are vulnerable to exploitation, especially offshore surrogate mothers and the children they bear.

Stefanie Carsley, Doctoral Candidate, Faculty of Law, McGill University
Surrogate motherhood in theory and practice: Exploring preconceptions about surrogacy in Canadian law and policy
My paper/presentation will discuss results of a qualitative study I undertook with 26 Canadian lawyers who advise and represent surrogate mothers and intended parents (IPs). I conducted in-depth, semi-structured interviews to explore 1) lawyers’ experiences working with surrogates and IPs and the services and advice these lawyers provide for their clients; and 2) how lawyers view Canadian legal responses to surrogate motherhood and proposed reforms. I will use this data to comment on the appropriateness and effectiveness of federal and provincial laws. I will consider, for example, whether lawmakers and scholars have overlooked issues that currently arise in relation to surrogacy and will examine how lawyers have developed norms and rules around surrogacy that supplement current legislation.

Alana Cattapan, CIHR Postdoctoral Fellow, Faculty of Medicine, Dalhousie University
Freelancing fertility: Surrogacy in the ‘sharing economy’
This presentation interrogates the intersections between a seeming rise in the public acceptance of commercial surrogacy in Canada and the prevalence of the “sharing economy.” It focuses on discourses apparent in both cases—the gendered nature of “sharing,” choice and mutual benefit, and a focus on engaging as a matter of desire—to draw attention to the challenges of an unregulated, decentralized, infertility industry

Maneesha Deckha, Professor and Lansdowne Chair, Faculty of Law, University of Victoria
Not A Handmaid’s Tale: Envisioning a publicly-run commercial surrogacy regime in Canada
Given the precariousness of current rationales against commercial surrogacy in Canada, it is time to investigate the viability of a domestic commercial model in which gestational surrogates will receive payment for carrying children for others. This need not be a market-based model but could be publicly administered. Part I of this paper first reviews the principal rationales motivating feminist objection to legalizing commercial surrogacy to briefly review why these reasons are no longer persuasive. Part II outlines the basic features of a government-mediated commercial surrogacy regime that could meet feminist intersectional standards. Five specific questions are addressed: 1. Who would qualify as surrogates; 2.Who would qualify as prospective parents; 3. What protections are needed for surrogates, prospective parents and resulting children; 4. How should surrogates get paid; and 5. What would fair compensation to surrogates be?

Sophia Fantus, ‎Ph.D Candidate at University of Toronto, Joint Centre for Bioethics/Factor-Inwentash Faculty of Social Work
“Giving the wife a break:” The experiences of surrogacy for gay cisgender intended parents
The evolution of political and social inclusivity of sexual minorities has importantly reshaped the landscape of queer parenthood in Canada. However, there is a lack of scholarship exploring surrogacy for cisgender gay men, perhaps a result of: (1) the ambiguity of surrogacy regulation in Canada that has yielded a highly private and secretive process; and (2) heteronormative approaches to reproduction and parenthood that have elicited exclusionary practices and policies for gay men. This presentation will report findings from a qualitative study that explored facilitators and barriers of surrogacy and parenthood for cisgender gay men. Shifts in practices and policies will be discussed.

Katy Fulfer, Department of Philosophy and Women’s Studies Program, University of Waterloo
From the global to the local: Notes on Canadian policy, commodification, and exploitation
Previously I argued that the tension between the ban on commercial surrogacy in the  Assisted Human Reproduction Act and the lack of enforcement of this ban for cross-border reproductive travel reinforces neocolonialism—a form of domination exerted primarily through economic forces (Fulfer 2017). This project was diagnostic in high lighting a social inequality. In my presentation, I will address normative and political dimensions of neocolonialism within Canadian surrogacy laws and consider how Canada should regulate surrogacy to minimize the impact of neocolonialism. I suggest that Canadian law should aim to protect surrogates at home and abroad from exploitation. Like feminist legal scholar Maneesha Deckha (2015), I support lifting the ban on surrogacy and incentivizing Canadians against cross-border reproductive travel. Contra Deeckha, I will argue that a reimbursement-based donation model is able to capture the differences between surrogacy at home and a broad, minimize the impact of neocolonialism, and protect surrogates against exploitation.

Michelle Giroux, Full-time professor, member of IRLRC and of Centre for Health Law, Policy and Ethics,  Faculty of Civil Law, University of Ottawa
Empirical Research on Surrogacy: A comparison respecting how judges, lawyers and families consider the question in France and in Québec

This presentation will allow us to share some empirical research results on surrogacy of an international and interdisciplinary research project sponsored by the French Minister of Justice (Mission Droit & Justice). The purpose of this project was to better understand and document the circumstances where French couples go abroad to access Assisted Human Reproductive Technologies prohibited in France and the challenges they face to secure recognition of the parentage established abroad when they return in France. In this context, interviews were conducted mostly in France but also in Québec with homo and hetero parental families, together with judges and lawyers.

Seema Mohapatra, Associate Professor, Dwayne O. Andreas School of Law, Barry University
The Case for an International Convention on Surrogacy
In this presentation, I will provide a brief international backdrop to controversies in surrogacy and make a case that an international convention on surrogacy is needed. The feasibility of such a convention is controversial because many countries ban commercial surrogacy and would not want to be involved in theorizing how to make it “right”. However, the convention does not have to deem surrogacy a right or even make any moral judgments for or against surrogacy. The reality is that many citizens of countries that ban surrogacy are seeking surrogacy arrangements elsewhere and thus even those countries banning the practice, should be party to a convention which attempts to address the issue. The convention should address how to deter the breaking of the law, without harming the children borne of such illegal arrangements. The Hague Conference has indicated its desire and willingness to propose an international convention about cross border surrogacy. I highlight ways that this could be done without impinging on the morals of those countries that are staunchly anti-surrogacy. 

Erin Nelson, Faculty of Law, University of Alberta
Regulating surrogacy: a proposed Canadian model
This presentation will discuss possibilities for decriminalizing commercial surrogacy and for regulating surrogacy arrangements (both altruistic and commercial). I will draw on some approaches taken in other jurisdictions (in particular, the Patient Review Panel model used in Victoria, Australia) and consider their potential use in Canada / Canadian jurisdictions.

Christine Overall, Professor Emerita of Philosophy and University Research Chair, Queen’s University
What’s wrong with “surrogacy”?
I begin by presenting a thought experiment in which “surrogacy” is wholly legitimized and institutionalized within Canadian society. The thought experiment suggests that the fundamental harm and injustice of “surrogacy” as a practice does not lie in the payment (if any) to “surrogate” women, the working conditions imposed on them, or the coercion (if any) of their participation. All of these factors can fairly readily (with political will) be improved and perhaps even fixed. Instead, the fundamental problem in “surrogacy” is the requirement—legal or otherwise—to transfer an infant at birth from the woman who gestated him/her to one or more individuals, a) without any attention to or consideration of the interests, needs, rights, and well being of the infant, and b) with the negation of the birthing woman’s responsibility for and authority over the infant. Thus, “surrogacy” inherently makes children into chattel and treats women as (non-human) breeding animals.

Vida Panitch, Associate Professor, Philosophy, Carleton University
Commercial surrogacy and the outsourcing of gestational labour
In this paper I argue that global commercial surrogacy arrangements are decidedly worse in kind than domestic surrogacy arrangements, due to the exploitative nature of transactions involving unequally vulnerable parties. More specifically, I argue that arrangements that involve a developing world surrogate are exploitative insofar as they exhibit an inter-contractual failure of both justice and consent. I conclude that developing countries such as Canada that ban domestic commercial surrogacy have an obligation to reconsider their policies in light of the outsourcing of gestational labour that such bans tend to generate.

Angel Petropanagos, Clinical Ethics Resident at William Osler Health System, Dalhousie University
Should Canada implement a flat fee compensation model for surrogacy arrangements?
Health Canada recently announced their intention to bring section 12 of the Assisted Human Reproduction Act (AHRA) into force by drafting and enacting supporting regulations. If and when completed, these regulations will list the types of receiptable expenses that can be legally reimbursed for donors and surrogates who participate in third party reproduction. In this paper, I problematize the receiptable expense model. Focusing on the case of surrogacy, I maintain that the AHRA model for reimbursement of expenditures presents several practical and ethical challenges. I outline the potential inconveniences, risks, and harms that this model imposes on surrogates, intended parents, and fertility clinics. I then consider several alternatives to this model. I suggest that a flat-fee compensation model with allowable exceptions for additional costs is best suited for the Canadian surrogacy context.

Vardit Ravitsky, Director of the Ethics and Health Branch of Centre for Research and Ethics, University of Montreal
Should children have a right to know the identity of the surrogate who carried them?
 This talk will explore arguments made in the context of donor-conceived individuals and their right to know their donors, and examine what aspects of that debate are relevant in the context of surrogacy, in which the surrogate mother is not genetically related to the child.

Emma Ryman, PhD Candidate, Philosophy, Western University
Physicians’ fiduciary obligations and surrogacy
In this paper, I argue that doctors stand in fiduciary relationships with surrogates, and therefore owe surrogates the fiduciary duty of loyalty. Surrogacy arrangements, as they commonly take place, often undermine doctors’ ability to uphold their fiduciary obligations insofar as they create serious conflicts of interest. Doctors are often placed in positions where they feel pressure to prioritize the desires of commissioning couples over the health interests of surrogates–when it comes, for instance, to decisions about birth method, the number of embryos transferred, or selective fetal reductions. I argue that surrogacy arrangements must be radically restructured so as to better insulate the doctor-surrogate fiduciary relationship from these conflicts of interest, and to ensure that the health interests of surrogates are protected.

Anne Saris, Law Professor, Département des sciences juridiques, Université du Québec à Montréal
The civil law concept of “parental project” and surrogacy in Canada
In 2002, Quebec changed its law on filiation in order to keep up with the progress in the field of assisted procreation and used for the first time explicitly the concept of “parental project involving assisted procreation”(art 538 CcQ). A few years later, in 2004, France also adopted this expression in its law on bioethics (art 37 II – 2– Loi n° 2004-800 du 6 août 2004 relative à la bioéthique) – without including it in its Civil Code. However, neither the Civil Code of Québec nor the French Law on bioethics defines it. The presentation will focus on the following questions: can this concept be applied to surrogacy in Quebec? What are the consequences of such a concept regarding the legal and de facto powers (pouvoirs) of the parties to a surrogacy agreement? Can this concept be useful in a common law context?

Régine Tremblay, SJD Candidate, University of Toronto | Incoming Assistant Professor, Peter A. Allard School of Law, University of British Columbia
Critical perspectives on surrogacy in Quebec: What now?
While the Civil Code of Québec remained unaltered, Quebec’s regulation of surrogacy has transformed over the last decade. In the aftermath of two Court of Appeal decisions–Adoption 1455 and Adoption 161–and the Rapport du Comité consultatif sur le droit de la famille, many called for law reform. They claim it is necessary to legislate about surrogacy even if family law is not to be reformed as a whole yet, in order to, amongst other things, attune the Code with lived experiences. This request needs to be analyzed carefully and critically. Indeed, by reforming only surrogacy Quebec would waste an opportunity to improve its highly gendered filiation principles. Surrogacy in Quebec reveals how the establishment of filiation in Quebec civil law is gendered and disproportionately burdensome on women involved in the process. Yet neither the Rapport nor recent case law addresses this issue of outmost importance.

Pamela M. White, Specialist Associate Lecturer, Kent Law School
Why we don’t know what we don’t know’ about surrogacy in Canada: Critical assessment of fertility medicine data systems and what can be done to change the status quo.
Unlike the USA and UK, no Canadian legislation requires the collection and publication of assisted reproduction information. This presentation uses the theoretical construct of Agnotology to examine socio-political and scientific framing of risks, data ownership, and information dissemination. It critically examines the need for (and history pertaining to) fertility health surveillance systems and the ability of Canada’s current databases to assess the efficacy of professional treatment guidelines and regulatory measures for vulnerable populations, notably gestational and traditional (genetic) surrogates. Recommendations are formulated concerning how Canadian data sources could be improved by drawing on the development of other information resources such as provincial birth registration, vital statistics, ambulatory care and hospitalization data. The presentation aims to make an important contribution to our understanding about existing data deficiencies and to suggest options and avenues to overcome these information gaps bearing in mind the privacy needs of patients.