Wombs for rent: an examination of prohibitory and regulatory approaches to governing preconception arrangements.

On October 9, 2002, Bill C-13 had its first reading in the Canadian House of Commons. Bill C-13 was in the same form as Bill C-56 of the First Session of the Thirty-seventh Parliament, which had its first reading on May 9, 2002. Bill C-13, an Act respecting assisted human reproduction, prohibits the practice of commercial surrogacy or preconception agreements in Canada, under threat of criminal sanction. In the first half of the article, the author discusses the deficiencies of the Bill's prohibitory approach to governing surrogacy agreements. These problems include the difficulty of implementing a criminal regime, the weak constitutional basis on which the federal government claims jurisdiction to enact a criminal prohibition of commercial surrogacy and the legislation's inability to prevent exploitation and coercion of vulnerable parties in surrogacy arrangements. In the second half of the article, the author examines an alternative regulatory scheme proposed by the Ontario Law Reform Commission and compares it to the prohibitory approach. The author concludes that the regulatory approach is much more effective than the prohibitory approach in governing the practice of commercial and non-commercial surrogacy arrangements. Regulation minimises the potentially exploitative aspects of surrogacy and provides legal protection to both parties in the agreement. The regulatory scheme proposed by the Ontario Law Reform Commission is also more effective in protecting the best interests of the child born as a result of a preconception agreement.