Law Times

Law Times • June 4, 2018 Page 9 www.lawtimesnews.com Surrogacy lawyers help with navigating issues BY MICHAEL MCKIERNAN For Law Times W hen Cindy Wasser welcomed the first of her two daugh- ters into the world in 2008, it transformed not only her personal life but her profes- sional one, too. The girls were born with the help of an egg donor and a pair of gestational surrogates, but the process of getting there af- fected Wasser so strongly that it inspired her to bring down the curtain on a two-decade career at the criminal defence bar and begin a second act in the devel- oping world of fertility law. "I went through hell on that first journey," Wasser says. As founder of Toronto-based Hope Springs Fertility Law, she now helps prospective intended parents, donors, surrogates and doctors navigate the confusing state of Canada's laws governing reproductive issues, including the federal Assisted Human Re- production Act. "When I became aware of the legislation, I was really quite stunned by how poorly drafted it was. There was a real need for reform, and I've spent the last nine or 10 years trying to make changes," Wasser says. The AHRA was gutted fol- lowing a December 2010 Su- preme Court of Canada ruling that the law strayed into provin- cial territory, and Wasser says jurisdictions such as B.C. and Ontario have had success filling some of the gaps left by the fed- eral regime. "In Ontario and B.C, there have been huge strides in terms of recognizing the intended parents on birth certificates. Nobody cares anymore if you're biologically related or not, as long as you've got a contract and the surrogate has had indepen- dent legal advice," she says. "I deal with hospitals every day, and it's beautiful to see the in- tended parents treated the same as any other, with their hospital bracelets and carrying their ba- bies around with them." Sara Cohen, who developed her fascination with the area during law school before found- ing Fertility Law Canada in 2011, says there have been some hiccups along the way. For ex- ample, the 2016 passage of On- tario's All Families Are Equal Act created a seven-day waiting period for surrogates to revoke their consent after giving birth, during which time they share decision-making responsibility for the child with the intended parents. The change was "awkward and unnecessary," Cohen says, because most arrangements in the province involve gestational surrogates, where both the egg and sperm are donated, as op- posed to traditional surrogacy, where the surrogate's own egg is fertilized with donated sperm. "It's just not a realistic fear that a gestational surrogate will want to keep the baby, so maybe they could have differentiated more between gestational and traditional surrogacy," Cohen explains. "There are certainly things I don't love about that law, but, overall, it's good legisla- tion." However, Cohen says she can't say the same about the AHRA. Despite societal ad- vances in attitudes to reproduc- tive technology, Cohen says, the act has failed to keep up, and it remains troubled by one of its central features: prohibitions on payments to surrogates for car- rying a child, as well as for eggs or sperm donation. The bans are backed by the might of the criminal law, with breaches potentially punishable by a 10-year prison sentence plus a fine for up to $500,000. While surrogate expenses can be reimbursed under the act, in the 14 years since it re- ceived royal assent, regulations have never been enacted to pro- vide guidance on what consti- tutes a reasonable expense. Cohen and Wasser are among a number of fertility lawyers who have backed a pri- vate member's bill introduced in May by Liberal MP Anthony Housefather that would de- criminalize payments to surro- gates. "A decade in jail and a $500,000 fine is like a sentence you would give to a terrorist," Wasser says. And while she admits it's unlikely anyone would ever be charged over minor gifts from intended parents to a surrogate, Wasser spends a good chunk of her time warning clients about the potential criminal conse- quences for sending f lowers, birthday presents or other more substantial items to their surro- gate. "It feels terrible, but I can't tell them not to worry about it, because I don't know if there's some crazy police officer out there who might show up at their door," Wasser says. "I'm sure the Crown prosecu- tors would put the kibosh on it, but, in the meantime, who's go- ing to pay the legal fees and calm them down?" Cohen says the ban on pay- ment for egg and sperm dona- tions has dried up the supply of both in Canada, with just one sperm bank remaining in the country, compared with around 20 that were in existence before the AHRA's implementation in 2004. Without the ability to pay, she says, the single Canadian sperm bank can only attract between 20 and 40 donors per year, with the result that almost all assisted reproduction in this country occurs using sperm im- ported from abroad, where it is collected out of the reach of Ca- nadian regulators. "The purpose of the AHRA was to protect children born through assisted human repro- duction, as well as donors and surrogates. But these criminal prohibitions are hurting them, not helping them," Cohen says. Scrapping criminal sanc- tions doesn't have to mean surrogacy turns into the Wild West, according to Wasser, who says provinces are best placed to devise their own regulations for determining acceptable pay- ments and more suitable penal- ties for transgressions. "It should be regulated by provinces as a health matter, in the same way as they do for organ donation. Each province has a better idea of what its own people need," Wasser says. If provinces are allowed to act, Cohen says, it could also help regularize the position of surrogacy agencies in the sys- tem. Until now, she says, they have been operating on shaky ground because of the uncertainty over the legitimacy of payments re- lated to surrogacy. "Agencies have an impor- tant role to play in educating and assisting all parties. When you have someone walking you through the process, it's very helpful," Cohen says. "Some are wonderful, but others are con- siderably less than wonderful, and I think provinces should be able to step in to license and regulate them." "Right now, there's little in- centive for anyone to bring their concerns to the attention of au- thorities when it's not clear if they broke the law by paying the agency," she adds. Toronto lawyer Joan Manafa, who acts in fertility matters as part of her family law practice, says the criminal sanctions are a "paternalistic" relic of outdated attitudes to surrogacy. "I believe that women should be free to choose to do it for al- truistic reasons or to get paid for putting their bodies through hell for nine months," she says. "Our laws must evolve as our society evolves. Whatever con- cerns people may have about exploitation of women could be adequately dealt with appropri- ate regulation, which would bet- ter protect both surrogates and intended parents." Manafa suggests surrogates should be paid at least $50,000 to carry a child, or more if twins are involved. "The fertility industry is highly lucrative for doctors, fer- tility clinics, lawyers and match- makers," she says. "The only ones that don't make money are the surrogates, and yet, they are the lifeblood in the fertility business. They are the ones that sacrifice the most." LT FOCUS Every time you refer a client to our law firm, you are putting your reputation on the line. DAVID PAYNE | DAVID MACDONALD | MICHAEL BENNETT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-7 1 2018-05-30 10:31 AM Joan Manafa says criminal sanctions over paying surrogates are a 'paternalistic' relic of outdated attitudes.

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