Submission of the BCCLA to the Standing Committee on Health on Draft Assisted Human Reproduction Legislation

Thank you Madam Chairperson and thanks to the Committee for the opportunity to make submissions on the Draft Legislation on Assisted Human Reproduction on behalf of the B.C. Civil Liberties Association.

Our position paper, which I understand has been distributed to members of the Committee, continues to be our position generally on the issues raised by the proposed legislation. In these remarks, I would like to outline our general opposition to the use of the criminal law as a means to effect policy in these areas and discuss specifically the problems raised by the contemplated prohibition on commercial surrogacy.

Our concern that the criminal law is not an appropriate means to deal with the issues addressed in the draft legislation echoes the concerns of several other presenters. We concur with many points previously raised, including:

that the criminal law is a blunt instrument, not conducive to the type of ready amendments likely to be required to address areas where scientific advancements are rapid; that the use of the criminal law is highly problematic relating to subject matter on which there is a lack of social consensus; and that criminal prohibitions relative to research activity into specific areas would almost necessarily generate uncertainty and fear in those whose research interests might be seen to border on those areas, and prevent many areas of beneficial research from flourishing in Canada.

In general, we favour the use, where necessary, of other forms of regulation to address the types of conduct that the draft legislation simply criminally prohibits.

I would like to make some specific comments on the proposed prohibition of commercial surrogacy.

There are three rationales given for the proposed prohibition:

protecting those potential surrogates who are vulnerable to exploitation because of their economic circumstances;
commercial surrogacy treats children as objects; and commodifying female reproductive capacity impairs the dignity of women.

We believe that regulation would be more effective than criminal prohibition as a means of guarding against the exploitation of economically vulnerable women. We agree with the prior submissions of Alison Harvison Young and others regarding the demonstrated tendency for criminal prohibition to drive activities underground where the vulnerable have no protection or recourse.

In our view, the legislative distinction drawn between commercial surrogacy and what is termed altruistic surrogacy is unprincipled, untenable, unworkable and illusory. The beliefs, circumstances and conditions which may lead a woman to choose to act as a surrogate mother are likely to be highly complex and intensely personal and will necessarily vary from woman to woman. In our view, it is not appropriate for the State to constrain women’s choices as to whether to enter into such arrangements on the basis of whether we think the rationales for their choices are “good” or “bad”. In few other areas would we consider the inclusion of an economic rationale as part of that decision making process so inappropriate that it ought to be subject to criminal sanction. Thus, in our view, there is no principled basis for denying women the opportunity to decide for themselves whether they wish to be paid for agreeing to act as a surrogate, while permitting women to do so for “altruistic” reasons.

Further, so-called altruistic surrogacy, if left unregulated, provides no protection to women who may be pressured into such an arrangement by family members; family pressures being potentially just as oppressive as, and often linked to, economic pressures. Additionally, it is impossible to draw a bright line between “expenses”, which are permissible in “altruistic” surrogacy, and “consideration” which is impermissible and seen to pertain only to commercial surrogacy. The difficulty in defining the scope of these two types of payment raises the serious concern that criminal sanctions may be imposed on the basis of a law which is vague and uncertain.

In regards to the second rationale, the concern that surrogacy which includes a commercial transaction treats children as objects, it is notable that a commercial aspect is present in many if not most adoption arrangements. As mentioned in our Position Paper, people who have paid large sums of money to adopt children—who, in that sense, have been commodified—manifest no tendency to treat the child they have adopted with any less dignity and respect because they have, in point of fact, been “bought”. It is evidently not the case that commercial exchange, in itself, is determinative of whether children are afforded proper care and concern.

Thirdly, the characterization of human dignity that is used as a rationale for prohibiting commercial surrogacy does not take sufficient account of the inherent importance of the capacity to exercise autonomy. People’s choices are necessarily legally constrained to avoid demonstrable harm to others. But to have choice constrained where there is not demonstrable harm to others is to have one’s dignity impaired, not enhanced. In essence, it is to infantilize the people so constrained, as their choice, their freedom and their ability to act according to their own assessment is curtailed. If this is done under the auspices of protecting the people whose choices are so constrained, then it is clearly, regardless of the laudable aims which may motivate those imposing the constraints, paternalistic, and tantamount to characterizing the people so constrained as unfit to make their own decisions about an intensely personal matter. This, I have no doubt, was not the intention of those who drafted the proposed prohibitions, but it is an inescapable consequence of the policy proposed.

Elsewhere in the draft legislation and its preamble, much emphasis is put on the importance of informed consent as a means of ensuring that people are making choices reflective of their free will. We agree wholeheartedly. The introduction to the draft legislation describes informed consent as a “core principle” and states that consent regulations would be developed to help ensure that women choosing “altruistic” surrogacy do so of their own free will. It is inconsistent with the draft legislation’s very proper objective to empower people to make informed choices to have this principle implicitly rejected in the case of commercial surrogacy.

The consent regulation alluded to in regards to altruistic surrogacy is an example of how policy to address these issues requires a detailed and nuanced approach. What, for example, constitutes written, informed consent? What information is required to be disclosed by and to the parties? What governs withdrawal of consent? These are crucial questions best addressed through thorough and detailed regulatory mechanisms.

To conclude our position on commercial surrogacy, it is a matter of serious concern for any civil rights group that public policy may be employing arguments grounded in a notion of human dignity that undervalues individual autonomy. In the absence of demonstrable harm resulting to persons such as children or others who have not consented to the conduct in question, the harsh instrument of the criminal law can not be justified. It is undoubtedly the case that the idea of commercial surrogacy offends some people’s sensibilities. But the mere causing of offense is not grounds for legal sanctions in a free and democratic society. In our submission, there is insufficient indication of demonstrable harm to society to justify the proposed limitation of individual rights and autonomy in the matter of commercial surrogacy.

Submitted on behalf of the British Columbia Civil Liberties Association by Micheal Vonn, Director