Recent Changes in Surrogacy Law in Canada

A surrogate is a woman who carries a baby to term on behalf of an individual or a couple, who are referred to as the intended parent or parents. There are two forms of surrogacy. Traditional surrogacy is where the woman uses her own eggs and the sperm from the intended father to get pregnant. There is also gestational surrogacy where the embryo is created from the sperm and egg obtained from the intended parents and then transferred to the uterus of the surrogate. Surrogacy is legal in Canada, but the surrogate must be at least 21 years of age and prohibited from receiving any financial compensation for the surrogacy. Let us consider the recent changes in surrogacy law in Canada.

What type of compensation is allowed for surrogacy in Canada?

According to the Assisted Human Reproduction Act, the surrogate is permitted to be reimbursed for all her reasonable expenses that are related to the surrogacy. This can include:

• Medications
• transportation costs
• lost wages incurred
• Childcare
• maternity outfits
• groceries
• dependent care
• pet care
• counselling
• communication costs
• legal fees
• communication costs
• health, disability or life insurance
• fitness or prenatal exercise
• expenses for obtaining medical notes

This list is not exhaustive for what compensation is allowed for surrogacy. However, there will always be categories of expenses that are not listed in the regulations. Therefore, the regulations build in a broad general category for products or services that have been recommended in writing by a physician or a person that is authorized by the laws of a province to provide or assess, monitor and provide health care to a pregnant woman. The inclusion of this general category created an important flexibility to recognize that there are no laid down approaches due to the fact that all egg donations or surrogacies are unique.

Important things to remember when navigating a surrogacy 

Surrogates cannot be reimbursed from another source. This means that in order to receive reasonable reimbursable expenses, the surrogate must certify that she has not received any reimbursement from any other sources. For example, if the expense is for the reimbursement of a medical expense, she cannot submit the expense for the reimbursement to her insurer and the intended parents, as that would be termed double-recovery. 

Another scenario is if the reimbursement is for a wage loss. The surrogate must not have received wage loss benefits from another source (like employment insurance or disability benefits) and then claim the full amount from the intended parents. In this case, the only amount that can be claimed is the difference between the benefit received and the net wage loss. The most important thing to remember is that the surrogate cannot profit from the surrogacy. It is important for the intended parents to work with a surrogacy agency that understands the regulations, and has a solid financial program in place to ensure compliance. This will protect the intended parents as well as the surrogates. It is important due to the recent changes in surrogacy law in Canada.

Surrogacy documents must be kept for six years

This is a new requirement under the regulations. The supporting documents for reimbursement (receipts, invoices, etc.) must be kept for six years. This should not come as a surprise for the intended parents, as they should keep a book of records for the surrogacy expenses.

Surrogates must provide a declaration of expenses

The donors and the surrogates must sign a declaration that contains the following information:

• their names and address
• the nature of each of the expenditures incurred
• the amount reimbursed
• the date that the expenditure was incurred
• in the case of travel expenses, the address points of departure, the destination and the distance in kilometres
• a statement that the expenditure incurred was in the course of the donation or the surrogacy
• a statement for each expenditure incurred in the course of the donation or surrogacy
• a statement for each expenditure that the amount has not been reimbursed by any source other than the intended parents. This is to confirm that they have not profited through double recovery.
• a certification that every piece of information in the declaration is true and comprehensive
• a copy of the physician’s note or written recommendation authorizing the expenditure

The intended parents or their representative agents must sign this declaration that the expenditures have been reimbursed.

Recommended steps in the surrogacy process in Canada

The first step after the surrogate and the intended parents have reached a consensus is to enter into a written agreement. This contract will state that:

• The surrogate is to be the birth mother of the child
• The surrogate is to hand over the child at birth to the intended parents
• The intended parents are to become the legal parents when the child is born.

If there is no surrogacy contract before the child is born, the birth mother is considered the child’s legal parent. It is also crucial that a lawyer should draw up the contract. The surrogate should also have her own independent lawyer go through the contract and ensure that the terms of the contract are suitable for her. After the child is born, in order for the intended parents to become the child’s legal parents, the following must happen:

• No one must withdraw from the contract prior to the conception.
• The surrogate gives a written contract after the birth of the child surrendering the child to the intended parents. It is important to note that the surrogacy agreement or contract is not consent, but it can be used as evidence of intent in any eventuality of dispute after the birth of the child.
• The child is given to the intended parents. 

All parties will be acknowledged as the child’s legal parents if the intended parents and the surrogate had decided before conception that they would jointly raise the child.

Do these regulations provide substantial changes to the law?

These new regulations do not provide many changes to the already existing surrogacy law in Canada. The recent changes in surrogacy law in Canada still buttress the same things. The intended parents can reimburse a Canadian surrogate as long as they:

• Only reimburse costs incurred as a result of the surrogacy
• Obtain a physician or qualified medical practitioner approval where required
• Keep records of the reimbursement
• Obtain a declaration from the surrogate for the expenses