Legal Landscape of Surrogacy in Canada: What You Need to Know

Surrogacy is the process where a woman carries a child to term and delivers for an intended parent or couple. When the child is delivered, the woman called a surrogate hands the baby over to the intended parents who assume all roles and rights over the baby. The appropriate legislation and legal issues that arise out of surrogacy agreements are complicated, and the penalties for defaulting or failing to abide by them can be very severe.

Types of Surrogacy

There are two types of surrogacy: traditional or altruistic and gestational or commercial. In traditional surrogacy, the embryo is created from the egg of the surrogate and the sperm of the intended parent or donor through IVF. This creates a genetic relationship between the surrogate and the baby. In commercial surrogacy, the egg and sperm are donated, and fertilization occurs in vitro. After the embryo has developed for a few days, the embryo is then transferred to the uterus of the surrogate.

Traditional surrogacy may seem like the more attractive option because apart from the IVF, the medical operations and expenses are less than in commercial surrogacy. However, from a legal perspective, traditional surrogacy is filled with complications, and few fertility clinics and agencies ever attempt it. It is, however, the only legal and the most frequently occurring type of surrogacy in Canada, although it mostly occurs outside a clinic setting.

What is the surrogacy law and prohibitions in Canada?

Surrogacy is legal in Canada. 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. But it is legal to reimburse her for her out-of-pocket reasonable expense incurred as a result of the surrogacy she has done. Some restrictions and prohibitions surrounding 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 services.
• 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 21.

The above regulations mean that in Canada, the following are considered illegal:

• Paying a surrogate for her service
• Offering to pay or paying another person or placing an advertisement to arrange for the services of a surrogate
• Trying to get women below the legal age to engage in surrogacy through medical procedures or advice.

These prohibitions and regulations stem from the guiding principle of Canadian regulations that explain that the exploitation of the reproductive capabilities of children, men and women for commercial gain is strictly forbidden for health and ethical reasons. It is worth noting that Canadian law does not completely prohibit surrogacy itself; it allows the altruistic forms of surrogacy. This means that as long as the surrogate is making the decision herself without any coercion, or financial or commercial gain, then the surrogacy is recognized by Canadian law. Also, even though paying a woman for the service of surrogacy is a crime in Canada, the law allows the woman to be repaid for all the expenses that she incurred in the course of the pregnancy.

It is also illegal to pay these surrogacy fees indirectly, these indirect payments may be made in the form of credit card bills, school tuition or mortgage payments. It is also illegal for the intended parents to hire or pay a third party to hire surrogate mothers. These include fertility clinics, international or overseas medical agencies, medical tourism or meditour agencies, etc. These agencies help match infertile couples with surrogate mothers. It is crucial to seek legal advice before trying any form of surrogacy. This is to help deal with any issues or problems that may arise, like legal parentage issues, adoption or citizenship issues.

The need for a surrogacy lawyer in Canada

A surrogacy lawyer can help intended parents navigate the complicated Canadian fertility laws. The Assisted Human Reproductive Act governs surrogacy, but also governs how the meeting happens between the intended parents and the surrogates. This is why it is imperative to acquire the service of a lawyer even before starting any surrogacy process. Once the intended parents have reached an agreement with the surrogate for her service, a surrogacy agreement wrongly referred to as the surrogacy contract would have to be drawn up. The agreement sets out the legal obligations and rights of each of the parties in the agreement and the terms guiding the agreement.

Once the baby has been delivered, further legal steps have to be undertaken for the intended parents to be declared the legal parents of the child, and not the surrogate or the surrogate’s partner if any. It is also crucial that a surrogate receives independent legal advice on the surrogacy agreement before the embryo transfer. This independent legal advice ensures that all the parties understand the rights and obligations stated by the agreement. Reputable fertility clinics or agencies will refuse to perform an embryo transfer or artificial insemination on a surrogate without first making sure that they have obtained independent legal advice. Also, the same law firm or lawyer that covers or represents the intended parents cannot represent the surrogate as well. They must be represented by two different firms.

Summary 

Couples must do research before embarking on the surrogacy journey. The exact cost is not usually clear because the law prohibits direct payment for surrogacy. If after the research and consultations, the intended parents feel that the Canadian regulations are too complicated to navigate, they can choose to undergo the journey abroad. This is a form of health tourism where the parents with the aid of overseas medical agencies, make plans for surrogacy in other countries. Medical tourism can be of help when the laws of a particular country are too stringent.