Why the government of canada won’t regulate assisted human reproduction: A modern mystery

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 6-7). 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 work-related income for surrogate mothers. Remarkably, more than ten years after the AHR Act received 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 (2006-2015) 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 third-party egg production.