Canada's regulation of assisted reproduction: morally coherent and evidence-based?

My published body of work submitted for PhD by Publication explores legal, ethical and health policy implications for surrogates, gamete donors, and patients of Canada's morally incoherent and misshapen approach to assisted human reproduction governance. Modelled on a legislative framework similar to that of the U.K. Human Embryology and Fertility Act, 1990 (amended 2008), the passing of Canada's Assisted Human Reproduction Act 2004 was met by relief by policy makers pleased to have finally found a workable compromise. However, it was a deeply flawed law. As soon as the Act was passed, Quebec launched a constitutional challenge, which resulted in the 2010 Supreme Court of Canada decision (Ref re AHR) rendering ultra vires the sections of the Act that sought to use federal criminal code powers to regulate in areas of provincial constitutional jurisdiction, notably the practice of medicine and research. Subsequently, Canada's assisted human reproduction landscape has dissolved into a laissez-faire professionally managed activity. What remains of the federal Act is a set of prohibitions criminalising payment of surrogates and gamete donors, use of an unscreened and untested ovum obtained from a traditional surrogate and used in her own surrogate pregnancy, sex selection, and genomic alterations. By 2019, the reimbursement regime for surrogates and gamete donors' expenses and the screening and testing criteria of human ova had yet to be regulated by the federal government.

It is against this misshapen and morally incoherent legal backdrop that my work uses case studies, empirical interview findings and statistical data analysis of birth and assisted reproduction registries to expose unethical fertility treatment practices provided to surrogates. I uncover and examine regulatory gaps; for example, when surrogates are both ova donors and traditional surrogates. I investigate emerging trends in the off-shoring of international surrogacy to Canada and I explore implications for those making embryo disposition decisions when confronted by annual cryopreservation storage renewal contracts.

As a body of work my publications have pushed the boundaries of what we know and it has revealed important gaps in knowledge (what we do not know) about surrogacy and fertility treatments in Canada. My papers bring together for the first time a range of data sources, including empirical interviews with IVF patients and descriptive and quantitative analysis of treatment data and birth registration information to make a significant and innovative methodological contribution to feminist legal studies and our understanding of liminal regulatory spaces. Where possible, I strive to give voice to the experiences of women and men undergoing fertility treatment. My published output also contributes to an improved and clearer understanding of the ideological structures underlying reproductive health information collection systems. This landscape reveals a number of thorny dilemmas arising from founding fertility law and regulation on misleading and inappropriate information.

Each paper seeks to make an independent original contribution to the literature; but together as a body of work, the emergent picture is as follows:

• Canada's approach of delegating assisted reproductive practices to a laissez-faire soft-governance regulatory system is a risky business with potential harms for patients, including donors and surrogates. Failure to track outcomes and a lack of monitoring of adherence to guidelines drives home the need to shape law and policy on sound information and empirical findings that give voice to the lives lived within the confines of law. To redress this, we need better data to foster evidence-based decision making. Efforts thus need to made at the provincial and federal levels to develop a transparent and accessible assisted reproduction registry compliant with WHO standards. Qualitative research with surrogates, intended parents and other actors in the fertility treatment industry needs to be undertaken. A donor registry should be established.

• From a legal perspective, my work calls for more robust and better tailored regulation. This should involve decriminalisation of financial compensation provided to surrogates and gamete donors; the development of policies to discourage, if not ban non-resident intended parents; provincial regulation of the practice of fertility medicine; and a standardised approach to parentageship across all provincial jurisdictions.

The published works I am submitting:

1. Chapter 10: 'A Less Than Perfect Law': The Unfulfilled Promise of Canada's Assisted Human Reproduction Act' (2015) in Kirsty Horsey (ed.) Revisiting the Regulation of Human Fertilisation and Embryology. London: Routledge 170-184.

2. 'Moral Evils v. Health and Safety Evils: The Case of an Ovum 'Obtained' From a 'Donor' and Used By the 'Donor' in Her Own Surrogate Pregnancy' (2018) 31(2) Canadian Journal of Family Law 55-126.

3. 'Life on the Liminal Bridge Spanning Fertility and Infertility: A Time to Dream and a Time to Decide' (2017) 24 Journal of Law and Medicine 886-899.

4. 'Hidden from View: Canadian Gestational Surrogacy Practices and Outcomes, 2001-2012' (2016) 24 Reproductive Health Matters 205-217.

5. 'One for Sorrow, Two for Joy': American Embryo Transfer Guideline Recommendations, Practices, and Outcomes for Gestational Surrogate Patients (2017) 34 Journal of Assisted Reproduction and Genetics 432-443.

6. 'Commercialization, Altruism, Clinical Practice: What Explains Similarities and Differences in Californian and Canadian Gestational Surrogacy Outcomes' (2018) 28 Women's Health Issues 239-250.

7. Chapter 2: ''Why We Don't Know What We Don't Know" About Canada's Surrogacy Practices and Outcomes in V. Gruben, A. Cattapan & A. Cameron (eds.) Surrogacy in Canada: Critical Perspectives in Law and Policy. (2018), Toronto: Irwin Law 51-80.

8. 'Canada's Surrogacy Landscape is Changing: Should Canadians Care?' (2017) 39 Journal of Obstetrics and Gynaecology Canada 1046-1048.

9. Chapter 7: 'Desperately Seeking Surrogates: Thoughts on Canada's Emergence as an International Surrogacy Destination' in V. Gruben, A. Cattapan & A. Cameron (eds.) Surrogacy in Canada: Critical Perspectives in Law and Policy. (2018), Toronto: Irwin Law 213-243. [Co-authored with Karen Busby. Each author contributed 50%.