Home insemination could be illegal

Queers looking to find themselves in a family way could be stopped in their tracks by Canada’s new assisted reproduction legislation.

“It’s very punitive legislation and it does impact any same-sex couple who wants to have a child genetically related to them because their options are severely reduced,” says lawyer Shirley Levitan.

The Assisted Human Reproduction (AHR) Act, became law on Mar 29. The law clearly prohibits payment to egg and sperm donors as well as surrogates. What isn’t clear is how this law will affect queers.

Like many people, Rachel Epstein, coordinator of the LGBT [Lesbian, Gay, Bisexual, Trans] Parenting Network at the Family Service Association Of Toronto, is trying to make sense of the new legislation.

“There are particular implications, both for heterosexuals who are dealing with infertility issues and for our communities…. We rely really heavily on reproductive technology,” she says. “There’s a lot of fear and a lot of worry in our communities right now about what this is going to mean.”

Although the act received royal assent in March, its provisions will be phased in gradually. On Apr 22, paying for gametes or surrogacy became illegal, as did human cloning, sex selection for non-medical reasons and “transplanting a sperm, ovum, embryo or foetus of a nonhuman into a human being.”

The maximum penalty for paying a surrogate or donor is a fine of $500,000 or 10 years in prison.

Other details aren’t as clearly defined. For instance, the Assisted Human Reproduction Agency Of Canada, the new regulatory and licensing regime, isn’t expected to be up and running until 2005, and regulations allowing donors to be reimbursed for donation-related “receipted expenditures” aren’t expected until late next year.

“It’s untested, virginal legislation,” Levitan says, “and a judicial interpretation would be required for a number of these sections.”

But to get an interpretation there needs to be a criminal or civil Charter challenge.

There’s also concern about how much is included under the law, for example, home inseminations.

“I don’t know that [the law] was targeted to home inseminations, but the way it was defined, that is one of the results,” says Levitan, explaining that the way the law is currently written it seems any exchange of fluid for the purposes of procreation in a non-medical environment would require licensing.

“If that were the case, it would seem that anyone who was going to have sex that involves the projection of sperm would need a licence. It’s absolutely absurd.”

“I feel like these other issues around reproduction and infertility and access by our communities to reproductive technology have kind of got lost in the larger issues of stem cell research and cloning,” says Epstein.

Health Canada spokesperson Paige Raymond Kovach says there’s no need for concern now that a law exists.

“This law helps all Canadians have minimum standards across Canada to ensure their health and safety,” she says. “There wasn’t a law in place before. This is a good thing for everyone, including gays and lesbians. It doesn’t limit access at all. As it’s covered by the Charter Of Rights And Freedoms, you can’t discriminate…. Really, that whole issue of payment comes back to ethical questions.”

But switching to an altruistic system, says Levitan, isn’t the answer. “I don’t think there are many people in this area who would say we don’t need regulations… that’s not the issue. The issue is turning people into criminals because they want to have a family and this is the only way they can do it.”