Steven H. Snyder & Associates Attorneys at Law

Surrogacy in Canada: Things to Watch Out For!

In recent months, Canada has become a much discussed and promoted destination for international surrogacy arrangements, particularly since destinations such as Thailand, India, and Nepal have imposed restrictions on surrogacy.1 Clients are told that it is far cheaper than embarking on a surrogacy arrangement in the U.S. but still has the same security, professional service, and availability of surrogates. We advise caution in taking these statements at face value.

Here are a few things to consider:

Canada has created surrogacy laws through the Assisted Human Reproduction Act 2004 (AHRA), which is a national piece of legislation that came into effect on April 22, 2004. The intent of these laws is to restrict certain types of surrogacy arrangements in Canada, including compensated surrogacy. These laws are in a state of flux and have been subject to numerous changes in recent years. Numerous provisions within AHRA have now been repealed after being determined unconstitutional by the Canadian Supreme Court (e.g. Reference re Assisted Human Reproduction Act (2010)). In addition, AHRA refers to regulations made under the Act which provide further detail about the various statutory provisions. These do not (yet) exist, leaving the status of surrogacy uncertain in Canada. Who knows what the Canadian legislature/courts will do next once one negative, high-publicity surrogacy-gone-wrong case occurs in Canada and whether Canadian surrogacy will close down as quickly as Thailand, India, or Nepal. What we do know is that compensated surrogacy presently remains expressly illegal and criminalized in Canada and it is illegal to pay any organization to recruit or match intended parents with a surrogate. There is simply no guarantee as to if or when these existing limitations will be aggressively enforced.

In addition, some hospitals are now imposing a policy whereby medical treatment and assistance is no longer being offered free of charge for a baby born via surrogacy to international parents. Instead, intended parents could be surprised with a hefty medical bill, particularly if the baby needs additional assistance or is in NICU. It is therefore vital to either check with the hospital and/or ensure that you are able to pay these bills if asked to.2 This is an evolving issue, and it is evolving to the significant detriment of international intended parents attempting to do surrogacy in Canada.

The final issue is weightier and concerns the distinction between altruistic and compensated surrogacy. AHRA states that 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' (s.6(1)), 'accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services' (s.6(2)), or 'pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it' (s.6(3)).

Although it is widely accepted in practice by Canadian agencies that surrogates can have their expenses reimbursed, this does not seem to be reflected in the legislation. Section 12 of AHRA (which discusses expenses) is not yet in force. Moreover, the wording seems to suggest that a surrogate cannot be reimbursed as there are presently no supplemental regulations: 'No person shall, except in accordance with the regulations, [...] (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy' (s.12(1)(c)). The situation is similar for donors (ss.7 and 12).

In any event, it seems that, from experience, agencies are taking an expansive view of 'expenses' and are including costs which do not directly relate to the surrogacy arrangement (e.g. housing costs) which can add up to a similar amount as compensation received by surrogates in the U.S.

Furthermore, it appears that surrogates and donors may be receiving lump sums, without reference to actual expenses and receipts as stated by AHRA (s.12(2)).3 As such, the amount above and beyond expenses is, by definition, compensation. If this occurs, the agency and/or intended parents are vulnerable to prosecution (s.60). In fact, investigations and prosecutions have already taken place in relation to Canadian surrogacy agencies, who were alleged to have been operating outside of the law.4 This 'flexibility' in relation to reimbursement may also explain why there seem to be more surrogates available in Canada than other truly 'altruistic' destinations such as the UK and some Australian states.

Lastly, the cost of medical care at Canadian fertility clinics that facilitate these arrangements is similar to many U.S. fertility clinic costs. It is therefore unclear how Canadian surrogacy is less expensive than U.S. surrogacy, and intended parents should be cautious in confirming all fees and expenses they should expect to pay up front prior to engaging in such an arrangement.

At IARC and Steven Snyder & Associates, we have successfully helped intended parents and surrogates complete more than 400 surrogacy journeys over the last 30 years. We offer a full and professional service and are experienced in assisting individuals based both within the U.S. and internationally. If you would like more information about us and the services we offer, we would love to hear from you!

  1. http://news.nationalpost.com/health/canada-a-major-destination-for-surrogate-shoppers?__lsa=0902-06a1
  2. http://news.nationalpost.com/news/canada/ontario-surrogate-gets-1400-bill-after-giving-birth-as-hospitals-start-charging-third-party-carriers-for-post-natal-care
  3. http://news.nationalpost.com/news/canada/canadas-murky-legal-world-of-surrogate-consultants-and-human-egg-buyers
  4. http://news.nationalpost.com/news/canada/business-has-boomed-canadian-surrogacy-agent-facing-27-charges-continues-her-controversial-work; http://news.nationalpost.com/news/canada/health-canada-all-but-ignores-illegal-ad-for-surrogate-cash-for-egg-donors; http://www.bionews.org.uk/page_259410.asp

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