Steven H. Snyder & Associates Attorneys at Law

Why seeking surrogacy in Canada is uncertain

Starting a family is harder for those suffering from uterine infertility and same-sex couples who must use a surrogate to have a child. As with other issues related to the parentage of children, the laws in each state and each country differ, and it's very complex to plan a reliable family-building process amid the discrepancies. 

Although the laws governing both parentage and surrogacy in each U.S. state vary, it is still true that the U.S. has reliable, legally-appropriate options for conducting a surrogacy program. It is also often the most expensive option for conducting a surrogacy, which drives many aspiring parents across international borders to cheaper destinations where surrogacy is allowed. Aspiring parents are also, however, coming to the U.S. for surrogacy to circumvent local laws that prohibit surrogacy where they live and for better health care.

As more and more cross-border surrogacies are undertaken, various surrogacy destinations have quickly and unexpectedly altered their laws to restrict or prohibit the process. This has caused many parents in mid-surrogacy to have worrisome issues in attempting to complete the process and/or bring the children home. After initially appearing to be desirable and welcoming destinations for surrogacy, countries such as Mexico, India, Thailand, Cambodia, and Nepal have each unexpectedly restricted surrogacy only to their own citizens or only to heterosexual, married partners. As each of these surrogacy options is foreclosed for more and more couples, our northern neighbors in Canada are seeing a boom in surrogacy, including international cases that cross borders and oceans.

The issue with borders

Even crossing state lines is challenging when it comes to surrogacy because the laws governing parentage and surrogacy are so diverse. That being said, involving another country presents a new level of legal challenges because issues of international travel with the child and the child's ultimate citizenship arise. A couple using a surrogate in Canada has to follow Canadian law for the surrogacy process and then document parentage in both Canada and the United States. As a result, such parents are subject to twice as many rules and twice as many possible pitfalls. Nevertheless, the cost of U.S. surrogacy is driving many U.S. intended parents to Canada to have children through the surrogacy process.

Canadian law

Canada's surrogacy law is rooted in the 2004 Assisted Human Reproduction Act. At the forefront is the prohibition of compensated surrogacy. The surrogate can be reimbursed for various undefined medical and surrogacy-related expenses but cannot receive any additional fee for the very real services she performs.

The law leaves open to interpretation what is a proper expense and how such expenses can be reimbursed, and surrogates and agencies in Canada are using this loophole to buttress their booming surrogacy process. Although the law prohibits a surrogate from receiving any compensation, parents and agencies are paying large sums of money to surrogates for living expenses that are, in all likelihood, not intended as proper expense reimbursement under the existing law. Nevertheless, Canadian authorities charged with enforcement of the prohibition are currently turning a blind eye to these likely violations of the law.

In addition, agencies are prohibited from being paid to advertise for or match surrogates with intended parents. Nevertheless, agencies are thriving in Canada by characterizing the fees they charge intended parents for "administrative services" during the pregnancy as opposed the services they truly do provide in advertising for and matching surrogates with intended parents. This temporal reallocation of fees vs. services is also likely in violation of the intent, if not the letter, of existing Canadian law.

The result of this disconnect between law, intent, and practice is that, unlike previous surrogacy destinations that passed laws after-the-fact to limit or prevent surrogacy in their countries, Canada already has a law that has been passed and is simply awaiting proper enforcement that likely prohibits most of the international surrogacies currently being conducted there. This is a serious concern when entering into a process as important as having a child and intending to transport the child home across international borders. Clearly adequate legal consultation about the legal issues and options is necessary BEFORE any such decision is made.

Post-natal health insurance

Another issue when crossing international borders is insurance coverage for the resulting medical costs, especially the care of your child after birth. Hospitals and medical providers in Canada are becoming more aware of the nature and cost of caring for the children resulting from surrogacy. Although Canada has national health care coverage for all citizens, and although the child may be a Canadian citizen if born on Canadian soil, many medical and insurance networks are now requiring the child the remain a Canadian "resident" for at least six months post-birth to qualify for insurance coverage. Not many intended parents can afford to leave their home and remain in another country for that length of time, so that may leave the child without proper health insurance after birth for expensive post-natal care, if required. Again, caution should be exercised and proper advice obtained before traveling to another country for surrogacy.

Questionable data

Huffington Post Canada also notes the lack of reliable data on surrogacy in Canada. While it's known that more people are using Canadian surrogacy agencies, the same groups who perform the services compile the statistics. Agencies collect data, including how many traditional surrogacy gestational surrogacy births have taken place, but there is no official data verification from independent or government groups to give a clear big picture of the status of surrogacy in Canada. There are numerous horror stories about legal complications with various international surrogacy destinations and agencies; the question is whether it is just a matter of time before one bad outcome results in Canada enforcing its existing prohibitive surrogacy law and becoming the next legal complication for aspiring intended parents.

Surrogacy is one of many paths to starting a family and it can be a safe and seamless process when it's handled cautiously and appropriately. Because of the many regulations, it's important to work with an attorney from the start. The right framework when you select a destination for your surrogacy process and enter into an enforceable agreement can simplify and stabilize the surrogacy process through the gestation, birth, and life of your child. Crossing borders adds unnecessary and potentially disastrous complications that simply aren't worth the risk without adequate legal advice. 

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