Wednesday, April 11, 2012

Surrogacy & Prostitution, or Neither

Paying to use a woman's body for sex is legal in Canada, while paying to use a woman's body to give birth isn't. There is no law in this northern nation that makes prostitution illegal but strangely enough there is one that bans paying surrogate mothers to help those who can't have children.

Regardless of whether the average Johnny or Jane Canuck are for or against one of these laws, there appears to be an inconsistency in the Canadian legal code. It seems to be okay to commodify a woman's body for a few hours for emotionless sex, but not okay to commodify a woman's body to create life to help an infertile couple. If commodification of a human is okay in one instance why not in both? The legality of one would suggest the legality of the other, or the illegality of one would suggest the illegality of the other.

Section 6 of the Assisted Human Reproduction Act states: "No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid." Health Canada's website explains the law as necessary because: "These prohibitions are based on the principle that human reproductive capacity should not be commercialized."

Though its website is not law, that statement of Health Canada's does offer a possible explanation why prostitution is legal but paid surrogacy is not. According to the government compensating a surrogate mother commercializes "human reproductive capacity" and that's why it's wrong. I guess Health Canada needs another birds and the bees talk, because paying a woman for sex with enough money to cover time off, maternity clothing, vitamins and other pregnancy necessities is perfectly legal.

As both commodify a woman's body and both at least have the potential to commercialize human reproductive capacity, to make our laws consistent prostitution and paid surrogacy should be legal or both should be illegal. If not, our courts must explain why paying for sex is okay as long as it's not to help infertile couples.

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