How to make a baby without breaking the law.

Queer people in Canada are faced with some challenging circumstances if they want to make a baby. In Canada, it is a criminal offence to pay someone to donate sperm, act as a surrogate, or to donate eggs.1 While it is possible to offer reimbursement for expenses incurred by the donor or surrogate, no payment for the donation or surrogacy itself is allowed. Anyone who does so can be charged by summary conviction or by indictment with a fine of up to $250,000 or imprisonment of up to five years.2

Being a sperm donor is a time-consuming process which involves numerous intake and assessment appointments, blood tests, detailed assessments of medical history, and usually a set number of required donations. Given the legal framework which only allows for compensation of expenses, it may not surprise you to learn that there are very few men who go out of their way to donate sperm out of the goodness of their hearts.

There is only one sperm bank in Canada, Repromed, which is located in Toronto. The bank has a limited number of available donors and the racial and ethnic diversity of the donors is very small. Shockingly, Canada’s only sperm bank has 60 donors. In short, there is just not enough Canadian sperm to go around.

Queer people who wish to make a baby are left with a limited number of choices. Of course, many queer people form their only family structures, asking friends or family members to donate sperm and/or create multi-parent/caregiver families. For those who do not have access to using the sperm of friends or family, or who want to use an anonymous donor, the options are limited. Some people utilize the small Canadian sperm bank while others privately arrange through online platforms to pay anonymous donors despite the criminal prohibitions. A large number of other queer folks end up ordering their sperm from the United States. Sperm shipped from the United States incurs expensive surcharges from a small number of businesses authorized to import it. These fees are in addition to the cost of the sperm itself and the high shipping costs (imagine what it would cost to ship overnight a mini missile sized shipping container of sperm on dry ice? It is well over $350). I have heard of a number of other people who will travel to the United States or elsewhere to get sperm.

A private member’s bill is being introduced in May by liberal MP, Anthony Housefather, which would de-criminalize the payment of sperm and egg donors as well as surrogates. I hope the bill will be embraced with open arms. The fact is that queer people, single people, and those with fertility issues need access to sperm, eggs, and surrogacy in order to make a baby. The criminal prohibitions against paying donors forces thousands of people to rely on imports from the US or rely on the sporadic goodness of people’s hearts. It does not make sense that queer people can be legal parents and access assisted reproduction if we need it, but that it is a crime to actually get the materials we need to make a baby.

Some would argue that paying for reproductive materials is an ethical issue because it leads to the commodification of the human body. I do not see it that way. I see the sperm that we bought as a beautiful gift which helped us to create our loveable, happy son. I am thankful every day for the donor who helped us to make the family that we dreamed about. I have no reservations that he should be compensated for his time.

The criminal prohibition is not stopping people who need reproductive materials from getting them, it is just making it harder, more expensive, and more time consuming to do so. Naysayers of the private members bill have stated that they are worried about exploitation and coercion. However, allowing for the compensation of donors and surrogates does not mean that safeguards and regulations cannot be implemented to ensure the reasonableness of compensation and protect people from any exploitation which might arise. Furthermore, allowing for the payment of reproductive materials does not remove the ability of not-for-profit banks to operate, just like they do in the US. Canada needs to make it easier for people to make a baby without breaking the law; any other policy does not make sense.

1 Assisted Human Reproduction Act, SC 2004, c 2, s 12(1).

2 Assisted Human Reproduction Act, SC 2004, c 2, s 61.