Canadian Journal of Family Law


Pamela M. White

First Page


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This paper critically examines the amendment made in 2012 to section 10(2)(c) of the Assisted Human Reproduction Act, 2004 mandating the screening and testing of “obtained” ovum “donated” by a “donor” and used in her own surrogate pregnancy. The amendment at section 10(1) of the Act cites the federal government’s obligation to reduce harm to human health and safety arising from use of sperm or ova for human reproduction, including the risk of disease transmission. This paper argues that the amendment mandating the screening and testing of surrogate ova when used by the surrogate in her own surrogate pregnancy creates a dangerous liminal regulatory space; one that transforms the surrogate into a third-party donor yet she incurs no health and safety risk to herself as she is the recipient of her own ova embryo. Genetic implications for the surrogate-born child makes a stronger case in support of mandatory testing, however the amendment imposes no similar screening and testing regime on the usual category of traditional surrogates: women who bear genetically-related children conceived through artificial insemination (IUI) rather than IVF. The paper questions the application of a health and safety evil that the amendment seeks to address. It suggests the real evil is a moral one whereby criminal code sanctions are being employed to discourage traditional surrogacy when practiced as a result of assisted reproduction techniques.