Is Commercial Surrogacy Legal in Canada?

Surrogacy is the process where a woman carries a child for a couple to hand the child over to them as soon as the child is born. The woman that carries the baby is called a surrogate; the couple or individual that the baby is given to after delivery is called the intended parents or parent. It is important to understand the aspects or types of surrogacy to enable a better answer to the question of the legality of commercial surrogacy in Canada. Surrogacy is a growing industry with different laws and prohibitions guiding the practice in individual countries. In some cases, the regulations vary from state to state within a particular country.

What are the Types of Surrogacy?

The widely recognized types of surrogacy include:

Commercial surrogacy 

This can also be referred to as gestational surrogacy. It is usually done on a contractual agreement where after the service has been rendered the surrogate is financially compensated. In commercial surrogacy, the egg and sperm are obtained from the intended parents or donors. The fertilization is done in vitro, and then the embryo that is produced is grown in the lab for a few days. It is then transferred to the uterus of the surrogate who then carries the baby to term and delivers it. This way the child has no genetic relationship with the surrogate, which is the major aspect of commercial surrogacy. 

This is the type of surrogacy that is practised by fertility agencies in many countries. It is preferred because of the usual legal complication that follows. Since there is no genetic relationship between the child and the surrogate, the surrogate mother has no legal hold on the child after delivery. 

Commercial surrogacy is illegal for foreigners in some countries like India, Nepal, Thailand etc. In some other countries, like Canada, it is completely illegal. The reasons for the prohibitions and bans range from issues with the legal rights of these children, issues in deciding their citizenship and problems with the arrangements with the surrogate mothers, including bonded labour.

Altruistic surrogacy 

This is also called traditional surrogacy. It is the type of surrogacy that works with arrangements with the surrogate. The surrogate volunteers for the service herself. She uses her eggs and sperm from the intended parents or a donor. The sperm is inseminated into her with the ART technique, making her pregnant. This way, the woman carries a biological relationship with the mother. The surrogate is usually not given any financial compensation for her service, but they are reimbursed for all medical costs or charges that directly relate to the surrogacy. 

This type of surrogacy can create legal issues, especially when the mother changes her mind about handing the baby over to the intended parents after the delivery. This type of surrogacy is not popular with fertility agencies because of this reason. However, it is the only legal type of surrogacy in Canada.

What is the Surrogacy Law in Canada?

Traditional surrogacy is legal in Canada, but commercial surrogacy is not. The Assisted Human Reproductive Act prohibits the provision or acceptance of consideration to a woman for the service of surrogacy. It is illegal to pay a surrogate mother for her service, which renders commercial surrogacy illegal in its entirety. However, it is legal to reimburse her for her medical expenses, and other expenditures that are directly related to the surrogacy itself. Some of the other restrictions around surrogacy in Canada include:

• The parties involved will not accept any consideration for arranging for the services of a surrogate mother, offer to make such arrangements for the consideration or advertise the arrangement of such service.
• The intended parents will not offer to pay or advertise that they will pay a woman to be a surrogate mother
• No one should advise or persuade a woman to become a surrogate or perform any medical procedure to help a woman become a surrogate, especially with the knowledge that the woman is below the age of 21

What the above regulations imply is that in Canada, the following are considered illegal:

• To pay a surrogate mother for their service
• To offer to pay or to pay a third party or even place an advertisement to arrange for the services of a surrogate
• To try and get a woman or women below the legal age to engage in surrogacy through medical procedures or advice.

These prohibitions and restrictions are all based on the guiding principle of Canadian regulations that explain that the exploitation of the reproductive capabilities of men, women and children for commercial is strictly forbidden for health and ethical reasons. 

The Concept of Altruistic Surrogacy and Law in Canada

The Canadian government allows the more altruistic forms of surrogacy and not the commercial type of surrogacy. This means that as long as the surrogate is undertaking the decision of surrogacy herself without any external coercion, or financial or commercial gain, then the surrogacy is allowed by the Canadian government. While it is also understood that the payment to the woman for the service of surrogacy is illegal, the woman can still be repaid for her medical expenses and other charges that are directly linked to the surrogacy.

It is also illegal to pay these fees indirectly, this payment can be in the form of mortgage payments, school fees or credit card bills. It is also illegal for the intended parents to hire or pay a third party to hire surrogate mothers. These include fertility clinics, overseas medical agencies, and medical tourism or meditour agencies, all of which help in the matching of intended couples and surrogate mothers.

Summary 

Intended couples need to do the appropriate research before finally deciding on the surrogacy journey. The exact regulations and the costs are not clear because the law prohibits direct payment for the surrogacy itself. This means that commercial surrogacy is in its form illegal in Canada. If after research, the intended parents feel that these regulations in Canada are too complicated to go through with, they can then choose to undergo the surrogacy abroad. This is usually done with the aid of these overseas medical agencies who help them make these plans. This can be seen as a form of health tourism or medical tourism which can be of help to intended parents when their home country’s laws prove too difficult.