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Money Under the Table
September 17, 2011 permalink
Since bearing children for money is not legal in Canada, actual practice it to compensate surrogate mothers with paper bags full of money under the table. Any chance the same practice prevails in adoption?
Secret truth behind Canada’s baby market
It takes a confident lawyer with decades of arranging surrogate-mother contracts to confirm what some fear is the secret truth about the emerging state of child-bearing by proxy: “I’m not naïve,” said Larry Kahn, a Richmond, B.C., family law specialist in adoptive and reproduction issues. “Do I think there is a brown paper bag being delivered or a secret handful of cash? Absolutely.”
Recent cases of unforeseen consequences and the increasing discomfort in some quarters about the commercialization of making babies — legally banned in Canada — are highlighting the grey areas of surrogacy, a practice dating back to antiquity but with the modern incarnation of a possibly reimbursed stranger replacing the slave girl as birth mother for women incapable of having their own child.
Cathleen Hachey, a 20-year-old New Brunswick woman who acted as a surrogate for a British couple she connected with online, was shocked to get a text message this summer from the would-be parents announcing that their marriage had dissolved and they would not be returning to Canada to collect the twins the woman had been carrying on their behalf for more than six months.
This month, a Saskatchewan judge ruled that a surrogate mother who gave birth to a baby girl on behalf of a gay couple was not actually the child’s “mother,” so that the child’s birth certificate would reflect the intention of the three parties and their surrogacy arrangement.
And last year, the National Post reported a case of a British Columbia couple that wanted their surrogate to undergo an abortion — after it was discovered the child would likely be born with Down syndrome — and the surrogate objected. The stalemate was broken when the surrogate decided to have the abortion, partly because of her own family obligations.
These stories, as individual as they are, show all is not perfect with the surrogacy status quo despite the more common experience, stories populated with happy couples raising children that are genetically related to one or both of them despite their inability to do so naturally.
The social, legal and regulatory infrastructures are clearly struggling to catch up with the modern reality of making babies.
Mr. Kahn’s candour on quiet payments in surrogacy arrangements will do nothing to mute the clamour for stricter regulation and control by surrogacy critics.
Neither will revelations from Assisted Human Reproduction Canada (AHRC), the federal agency created to monitor the fertility laws, that more than 20 alleged violations of the act have been investigated, most related to payment for surrogacy and purchase of gametes from a donor.
“Most such issues are resolved through outreach and cooperation at the initial stage of its review,” said Benoît Martel, agency spokesman.
Four allegations were forwarded to police but no charges have been laid to date. The case of the jilted New Brunswick surrogate is being added to their caseload for review, he said, even though her story had a happy ending: She found a Nova Scotia couple wishing to adopt the twins.
As a lawyer, Mr. Kahn handles dozens of surrogacy agreements each year, a caseload he has seen grow steadily over more than 30 years.
In a perfect world, all surrogates would be altruistic women motivated only by a drive to help a childless couple, he said. The reality is that pregnancy is an ordeal. How many would go through it and get nothing in return?
Mr. Kahn is quite certain financial arrangements outside the official signed contracts he and other family law attorneys prepare are being made under the table in many, perhaps most, cases.
Such private arrangements appear to contravene the Assisted Human Reproduction Act, enacted in 2004.
The act specifies activities that Parliament deemed “ethically unacceptable or incompatible with Canadian values,” including human cloning and the kinds of genetic activities that inhabit science fiction novels and horror films.
Among the banned activities, however, are the purchasing, offering to purchase, or advertising payment for sperm, eggs or for the services of a surrogate mother.
It is designed, according to AHRC’s website, to “prevent the ‘commercialization’ of human reproduction in Canada… Surrogate mothers are currently allowed to be reimbursed for legitimate expenses they may incur.”
Debate over what is a legitimate expense arose immediately. Can a couple — with a nudge and a wink — buy a surrogate a new Lincoln Navigator because they want their fetus well protected on the road? Could a surrogate quit her job to stay rested and stress-free and have the intended parents reimburse the salary?
“It is a no-man’s land,” said Mr. Kahn.
Adding to the confusion, last year the Supreme Court of Canada ruled much of the act unconstitutional, but upheld the section that restricts payments. The split has done little to end confusion. Almost a year later, the government is still reviewing the decision, said Mr. Martel.
Diane Allen of the Infertility Network support group said she is aware of a “black and grey market” in surrogacy in Canada.
“Undoubtedly, there are financial arrangements,” she said. “It goes on online. It goes on with the tacit or overt support by some fertility clinics and some of those involved who earn their living by doing this,” she said.
She is astounded with the lack of scrutiny over surrogacy in comparison to arrangements for transfering a kidney, for example.
“Surrogacy, no matter how you dress it up, apart from a few exceptional cases of altruism, is a commercial trade. In the end, it is an exchange of money for a baby. Society is opposed to the selling of babies through foreign adoptions and against trafficking in women and the slave trade, but because doctors are involved, this is given legitimacy.
“We’re talking about human life here and it is treated as a manufacturing process,” said Ms. Allen.
She wants AHRC to crack down: “We have this void, and when we have a void, people rush to fill it.”
AHRC’s Mr. Martel said the agency is active and vigilant in response to allegations of breaches of the act. But laying charges is out of the agency’s hands: “A prosecution for an offence requires the consent of the Attorney General of Canada,” he said.
Anyone looking at the arrangements can see how they might be fraught with emotional and legal twists.
One can imagine a surrogate mother changing her mind once she is holding the glistening baby that emerged from her womb and refusing to give it up. One can imagine overbearing intended parents trying to micromanage a surrogate’s life while she is pregnant.
And in the netherworld of how the surrogate is reimbursed, there are bound to be the kind of disputes that arise in any commercial transaction.
While Mr. Kahn confirms one perception of surrogate deals, he debunks another.
“There are no cases in Canada of a surrogate trying to keep the baby that required a decision by a judge,” he said. There have been some cases of reluctance that needed mediation, and a case that went to court but was resolved prior to a decision, but no irreconcilable differences, he said.
He has had clients that disagreed over the amount of medical information a surrogate is willing to share, for instance, and a difference of opinion on whether the intended parents can be present in the delivery room at the birth.
He knows of a case where the surrogate wanted to stay at the Four Seasons while attending medical appointments and the intended parents who were paying the bill were booking the Holiday Inn.
They are problems, Mr. Kahn said, the marketplace and legal contracts can sort out without too much government involvement.
“How much can government regulate human nature? If you have a couple who can’t have children, you are going to have an inevitable push,” he said.
But leaving things for the market to sort out can lead to other problems, as in countries where surrogacy has been gripped by rampant commercialism.
In the United States, surrogacy is less regulated than used car sales, David Plotz, editor of Slate and author of The Genius Factory, recently wrote in an online debate hosted by the New York Times.
“Conservatives, skeptical of regulation, were glad to leave fertility alone, and let it grow into a profitable marketplace. Liberals, normally fond of regulation, were leery of doing anything to dictate women’s reproductive choices. The result was an open field,” he argued.
“This willingness to try anything made the American fertility business the liveliest in the world. More regulation — necessary as it is — will diminish that capitalist energy.”
Perhaps something like Canada.
Source: National Post