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On May 29, 2018, Bill C-404, An Act to Amend the Assisted Human Reproduction Act was introduced in the House of Commons by Liberal MP, Anthony Housefather. If successful, Bill C-404 would result in a commercial market for surrogacy, egg and sperm donation in Canada.

Bill C-404: How Will It Change Surrogacy in Canada?
What is Bill C-404 and what changes does it propose to surrogacy in Canada? In our latest Family Law blog post, Erin Lepine looks at the Bill and the repercusions for the governance of reproduction.


Currently, Canadian law strictly prohibits the commercialization of surrogacy and gamete donation, following the policy that these should be strictly altruistic acts in Canada.

For Canada to go in a direction where commercial surrogacy and gamete donation is acceptable would require a significant change in fundamental principles. This change is clearly acknowledged by Housefather in his Private Members’ Bill, as one of the proposed revisions to the Assisted Human Reproduction Act (the AHRA) is to delete the declaration that “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”.

Simply deleting this principle from the Act will not reduce the risks of exploitation and other ethical concerns that Parliament sought to address in 2004 when the AHRA was enacted, and that remain very real today.

Bill C-404 does state that a donor or woman acting as a surrogate must not be coerced into doing so. However, what counts as coercion, particularly when the parties will be engaging for pay, and when payment is occurring within a commercialized fertility industry? Moreover, what would be considered fair pay, and how can that possibly be measured?

Trade in reproductive capabilities has an impact on vulnerable groups in Canada. Deleting language that draws attention to these concerns reveals the goal that Housefather’s Bill is truly seeking to achieve: to increase the volume of sperm and eggs available to intended parents in Canada no matter the outcomes for donors and surrogates. The Bill also aims to remove the risks to third-party agencies who profit from matching intended parents with donors and women who will act as surrogates.

Members of Parliament will need to give this Private Members’ Bill thorough consideration to ensure that they are taking into account the impacts of changing our fundamental principles about the governance of reproduction.

For more information about this Bill or surrogacy in Canada, contact our Family Law Group or our Fertility Law Group.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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