Since 2004, Canadian Law Bans the Purchase and Advertisement of Egg and Sperm Donation

The Assisted Reproduction Act, S.C. 2004, c. 2 (or the AHRA) is the guiding piece of federal legislation that governs egg donation in Canada. The statute is the result of a process that began in the late 1980’s and became law in 2004. This legislation prohibits both the sale and advertisement of the sale of gamete donation. While the Canadian Supreme Court has stated this law should not be governing law because it interferes with the regulation of health- which is left to each province to govern. Several other rulings, most sealed, have been released since, but the rulings are murky and the only clear law that remains clear is that gamete advertisement and sale purchased from a Canadian citizen or entity is illegal.

Recent Judicial and Administrative Rulings are Unclear and Trumped by The AHRA

Only the purchase of eggs and sperm from entities and citizens outside Canada are clearly legal under current Canadian Federal Law.

The AHRA does seem to allow for purely altruistic donation of sperm and ova in Canada, meaning that the donor must give freely and only be compensated for expenses related to the services rendered. However, it is a bit unclear what “reasonable expenses” means.

While a clearer list of “reasonable expenses” was discussed in 2010, it did not create any concrete law and was deemed to be speculative commentary at best.

The AHRA and its unclear and inconsistent enforcement has forced many hopeful parents to seek donors outside of the Canadian Borders. Despite the fact that the Canadian Standards Association has compiled a list of potential expenses that may be reimbursed to the donor, these are guidelines and the guidelines are unclear and unenforceable as law. What’s more, some provincial case law recognizes the legal parentage of children born through the product of egg or sperm donation, but this remains unenforceable by federal law.

There is a Solution: Canadian Citizens May Legally Seek Donation Outside the Borders of Canada

The safest bet for Canadians is clear, the safe and legal method to obtain a donor is to seek a donor outside of Canada. The Judicial commentary is murky and still carries no weight. It is not illegal for a Canadian Citizen to work with a donor in the US or another country. It is also not illegal for Canadian donors to come to the US for egg donation.  If Canadian donors come to the US to donate, typically 1-2 trips are needed (1 trip for screening, which is an overnight trip, and 1 trip for the retrieval, which is a 4-5 night trip). All trips are pre-paid for.