The Conversation by Alana Cattapan, Angela Cameron and Vanessa Gruben 24 July 2017 (republished in The National Post 25 July 2017)
A recent Canadian Medical Association Journal (CMAJ) news article reported that the Canadian Fertility and Andrology Society (CFAS) has called for the federal government to reconsider the ban on payment for surrogacy in Canada. The article suggests that industry professionals and academics alike are coming around on compensation for surrogacy, with support growing all the time.
Although the CFAS statement was released in May, the CMAJ article reminds us that concerns about paying women for their reproductive labour are never far from the headlines.
In Canada, payment for surrogacy, egg donation and sperm donation is banned under the 2004 Assisted Human Reproduction Act. Under the Act, surrogates (like egg donors and sperm donors) can be reimbursed for receipted expenses. With a note from their doctor, surrogates can also receive some money for lost work-related income during pregnancy.
The Act states that this reimbursement of expenses must follow the relevant regulations. Until now, however, these regulations have never been drafted. After more than a decade, Health Canada is now in the throes of making them. This is occurring as surrogacy in Canada is expanding to accommodate more and more people from countries where surrogacy is more expensive, harder to access or banned completely.
It is in this context that the CFAS (which is a part-medical association, part-industry organization representing the fertility industry and its doctors, lawyers, scientists and ethicists) has called for the government to reconsider the ban on payment.
A profitable market
It is important to know that the market in surrogacy in Canada is a profitable one. Doctors, lawyers and other professionals charge large fees for assisting intended parents and surrogates.
There are many perspectives on paying surrogates, and they differ even among the authors of this article. Some argue that it is only fair that women who act as surrogates be paid. It is easy to think that the hard work and sacrifice of being pregnant and giving birth for someone else deserves at least some reward. Others think that Canadian law should allow only for the reimbursement of expenses — to avoid commercialization.
Why “compensation” and not “payment”?
Regardless of these varying ideas, the word “compensation” raises red flags. Talking about payment for surrogacy as “compensation” — rather than as work — perpetuates class-related assumptions about who “good surrogates” should be. And about how surrogacy relates to other forms of gendered and reproductive labour.
This concern is based on the idea that compensation is something that is minimal, intended only to offset the time and risks involved in becoming a surrogate. This idea — borrowed from clinical trials with healthy volunteers — implies that by offering “compensation” we can recognize the challenges of participating without encouraging people to do it for the money.First, the language of “compensation” relies on underlying assumptions about who can, and should, be a surrogate. One of the many things that has worried critics in the past is that payment for surrogacy might lead to exploitation. The idea here is that money might serve as too great an incentive to participate, becoming women’s sole or primary motivation to be a surrogate.
In this way, payment is legitimate when people don’t need the money (but could use it) and potentially coercive when they do.
Can’t poor women be good surrogates too?
In the case of surrogacy, the rhetoric of “compensation” implies that poor women might be coerced or exploited, their consent unwitting. It implies that women with more economic resources can consent freely.
However, surrogates — like nurses, like teachers, like care workers — can participate for both altruistic and economic reasons at once. This is not to say that having a cadre of surrogates who are in it for money alone is desirable. But framing the work that surrogates do as “compensation” suggests that money is never a legitimate reason to partake.
It makes it impossible for women to participate who might, in fact, need the money.
Surrogacy as gendered, intimate and reproductive labour
Second, the word “compensation” distracts from the relationship between surrogacy and other forms of gendered, intimate and reproductive labour. Surrogacy produces real live people and this should not be overlooked. Surrogacy is of course different from the kinds of labour that midwives and nurses and caregivers do.
But recognising that surrogacy is a form of work draws attention to the broader spectrum of women’s work that exists at once inside and outside of well-regulated, well-valued work.
In an ideal world, women’s equality would be uncontested. Reproductive labour in the home, in schools, in hospitals and daycares would be seen for the important work that it is. In this world, surrogacy could perhaps be part of a paid, legitimate economy. However, in a context where gendered and reproductive labour continue to be undervalued, surrogacy will likely be undervalued too.
As the CFAS urges Health Canada to move beyond the current regulatory process to consider compensation for surrogacy, we need to think carefully about what “compensation” is and does.
Speaking about “compensation” is a way of avoiding difficult conversations about payment to surrogates. If we are going to move forward, we will need to have those conversations.
Alana Cattapan, Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of Saskatchewan; Angela Cameron, Associate Professor of Law, University of Ottawa, and Vanessa Gruben, Associate Professor of Law, University of Ottawa