Eloquent (In)Action: Enforcement and Prosecutorial Restraint in the Transnational Trade in Human Eggs as Deep Ambivalence About the Law

Abstract

While the 2010 Supreme Court of Canada Reference re Assisted Human Reproduction Act undermined significant parts of the federal statute, the criminal prohibitions were never challenged in the reference. In particular, sections 6 and 7 remain in place. These sections severely penalize payment for gametes or reproductive services with maximums of 10 year prison terms and/or $500,000 fines. The AHRA has no extra-territorial application on its own terms, and hence does not directly address those who engage in the prohibited acts in other jurisdictions. This article responds to an argument by Francoise Baylis and Jocelyn Downie that proposes extending the reach of the AHRA extra-territorially through common law cases like Libman. We argue that this is not only an alarming proposal, but also one ill-founded in the logic of criminal law and international comity. Their argument also fails on the basis of flawed statutory interpretation with respect to the interplay between sections 7 and 12, the latter (still unregulated almost 10 years after the statute was enacted) relating to reimbursement for various items associated with gamete donation and gestational services. We further argue, moving from the global context in which assisted reproduction operates inwards to Canadian policy, that the proposal to extra-territorialize the AHRA is morally and politically impoverished not only for those elites with the funds and wherewithal to skirt the law through reproductive travel, but even more so for those seeking and using reproductive services who remain within Canada – and for Canadian society writ large. The considerable evidence of hypocrisy, ambivalence and hesitation with respect to the AHRA strongly suggests that the statute does not reflect essential or fundamental Canadian morality. All parties associated with assisted reproduction would be better served by the complete rescission of the AHRA replaced by a regulatory framework foreshadowed by this article’s final recommendations.