Assisted Human Reproduction Act (AHRA) makes commercial surrogacy illegal in Canada. Under s.60 of the act, any person who contravenes this prohibition on commercial surrogate services is liable “to a fine not exceeding 0,000 or to imprisonment for a term not exceeding ten years, or to both; or is liable […] to a fine not exceeding 0,000 or to imprisonment for a term not exceeding four years, or to both.” Really? In Canada? The Act’s punitive approach towards commercial surrogacy not only raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy as Canadians, but it may well be unconstitutional under s.7 and s.15 of the Charter. Yet, since the adoption of the AHRA, there has been curiously little debate or outcry from either the Bar or the public. Considering the gravity of the interests at stake, the absence of thoughtful criticism is striking and disheartening. In an attempt to jump-start a long overdue debate on the merits of well-intentioned, but seriously misguided and harmful provisions dealing with commercial surrogacy, this article offers a an informal and rudimentary Charter analysis of commercial surrogacy provisions. I submit the following as the conclusions of this Charter analysis:

a)     Commercial surrogacy prohibition in AHRA violate s.7 liberty and security interests of women who choose to act as surrogates, in a manner that is not in accordance with the principles of fundamental justice, and that cannot be justified in a free and democratic society.