Surrogacy in Canada

Most people have heard of surrogacy, but don’t necessarily know how it works from a legal standpoint.

Who’s using a surrogate?

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People turn to surrogacy for any number of reasons: same-sex couples, infertile couples, single individuals, people who’ve had risky pregnancies in the past, and the list goes on.  Surrogacy use to be practiced in secret and remained controversial because of the stigma attached to “interfering with mother nature”.  However, much of this stigma has evaporated and it’s no longer taboo to talk about surrogacy.  

There are different types of surrogacy but the main arrangements are as follows:

1.     Gestational Surrogacy – Egg from mom and sperm from dad are used to create an embryo which is then implanted into a surrogate.  The child born from this process is genetically related to mom and dad and has no genetic relation to the surrogate.

2.     Traditional Surrogacy – sperm from dad is implanted in surrogate.  The child born form this process is genetically related to dad and surrogate.

In Canada, under the Assisted Human Reproduction Act, it is illegal to: “pay, offer to pay, or advertise payment for sperm, eggs or in vitro embryos from donors or for the services of surrogate mothers – which includes payment to a third party for arranging the services of a surrogate.”  If you’re found guilty of any of those activities, the penalty includes a potential sentence up to ten years in prison or a fine as high as $500,000.

However, surrogates can be reimbursed for expenses they incur during the surrogacy process. Surrogate mothers must be able to provide receipts or keep a detailed list of expenses prior to being reimbursed. According to Surrogacy in Canada Online, permissible expenses are as follows:

1.     Lost wages - if the surrogate takes time off work to attend medical appointments or is medically unable to work because of the pregnancy, this is a claimable expense.  Also, if the surrogate wants a support person to attend medical appointments, this is deemed a reasonable expense as well.

2.     Childcare – if the surrogate has another child, the surrogate can claim expenses for childcare while attending medical appointments related to the pregnancy.

3.     Legal – intended parents are expected to pay for independent legal advice for their surrogate, in addition to paying for a life insurance policy and Will for the surrogate.

4.     Medical – any medical expense related to the surrogacy process is a claimable expense, common examples include: IVF, pregnancy tests, vitamins, prescriptions, blood work, ultrasounds, massage, acupuncture, etc.

5.     Travel – this includes trips to the doctor, lawyer’s office, picking-up prescriptions, mileage, airfare, and hotel accommodations if necessary.

6.     Food – if the surrogate requires a special diet (ie. allergies, etc.), and as the pregnancy progresses, the pregnant surrogate will consume additional food and this increased cost can be deemed a claimable expense.

7.     Misc. – maternity clothing, portion of cell phone bill, snow removal, lawn care, etc.

According to Surrogacy in Canada Online, the average reimbursement for a Canadian surrogate mother ranges from $18,000 to $33,000. 

In the United States, commercial surrogacy is legal and couples seeking a surrogate will often go through a third-party agency which links potential parents with surrogates.  Canadian’s have utilized these agencies in the US primarily because they’re established and they don’t want to have to search for an individual surrogate on their own.

It is expected that Canadian law will eventually change to permit commercial surrogacy, but until that happens, it’s important that your surrogacy contract complies with the existing law.   If you need independent legal advice regarding your surrogacy contract, please contact us.