Criminalising commercial surrogacy in Canada and Australia: the political construction of ‘national consensus’

ABSTRACT

This article examines the language used to justify a criminal prohibition on commercial surrogacy in Canada and Australia. I demonstrate that legislators in each country framed commercial surrogacy as an area over which there was national ‘consensus’ because of uniquely Canadian and Australian values. This was an effective political strategy, but for different reasons in each country: in Canada, because it fit with frames surrounding healthcare and anti-commercialisation, and in Australia, because the distinction between ‘altruistic’ and ‘commercial’ surrogacy mapped onto broader themes of altruism in Australian society. This suggests that the political use of national frames is especially successful when it taps into pre-existing narratives of what constitutes unacceptable behaviour in a given polity, and when it is attached to criminal prohibitions.

本文研究了加拿大、澳大利亚刑法禁止商业代孕所使用的语言。作者指出，两国的立法者都将商业代孕界定为一种各国出于各自的价值观都有共识的领域。这是一种有效的 政治策略，但在不同的国度却有着不同的原因。在加拿大，是因为它符合医疗保健和反商业化的格局。在澳大利亚，是因为利他性的代孕和商业代孕的区别进入了澳大利亚社会更大的利他话题。这说明，对国家大架构的政治利用，当涉及既定政治下不当行为的前在叙事，当联系到法律禁止时，是非常之成功的。

KEYWORDS:

• Commercial surrogacy
• national values
• Australian politics
• Canadian politics
• criminal law

Acknowledgments

The author would like to thank Françoise Baylis, Rainer Knopff, Mark Harding, Tim Anderson, and the AJPS reviewers for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Dave Snow is Assistant Professor in the Department of Political Science at the University of Guelph.

Notes

1. As part of a larger research project, 55 interviews were conducted from May 2010 to July 2012 in Canada and Australia. Five Australian participants are cited in this particular study. Parliamentary debates and committee hearings took place primarily from 2008 to 2012 in Australia and from 1996 to 1997 and 2001 to 2004 in Canada. These Canadian debates are over a decade old, but they nonetheless represent the best explanation of the rationale for Canada's commercial surrogacy prohibition, which was passed in 2004 and remains the law of the land.

2. International commercial surrogacy has become a growing issue of public concern for both countries (especially Australia), but for brevity I only address domestic commercial surrogacy here. For more information on international surrogacy, see Parks (2010), Panitch (2013) and Lozanski (2015).

3. Like many others, I prefer the term ‘unpaid’ to ‘altruistic’, insofar as surrogates may enter into unpaid surrogacy arrangements for reasons other than pure altruism, and altruistic professions can permit payment (see Millbank 2011). However, as is shown, both Australian and Canadian legislators frequently adopted the language of altruism, and as such ‘altruistic surrogacy’ is referred to frequently throughout the article.

4. The legislation also prohibits acting as an intermediary for commercial surrogacy, and counselling someone under 21 to be a surrogate.

5. The regulations have not been created, but Health Canada has officially stated that ‘surrogate mothers are currently allowed to be reimbursed for actual expenses they may incur’ (cited in Downie and Baylis 2013: 229).

6. An altogether different question, beyond the scope of this article, concerns the movement beyond the passage of law to the actual realm of prosecution. In Canada, for example, just a single criminal charge has been laid under AHR Act, and only then after ‘long, systemic and deliberate’ transgressions by the person in question, a fertility consultant (Motluk 2013). The lack of prosecution could also be used to question the true level of consensus regarding the desirability of criminal law.

7. In 2015, the Canadian Standards Association (CSA) announced it will amend its standard on tissues for assisted reproduction by adding an ‘Annex on Reimbursement’ pertaining to reimbursement for surrogacy on donors of human reproductive material. The draft amendment is available online (Canadian Standards Association 2015). However, unless referenced by federal legislation, compliance with these standards would be voluntary.

Additional information

Funding

This work was funded by the Killam Trusts at the University of Calgary and Dalhousie University.