The Legal Landscape of Surrogacy in Canada 

Surrogacy is a form of assisted reproductive technology that helps create a solution for couples or individuals who desire a biological child of their own but are unable to have one. A woman known as the surrogate mother agrees to carry the pregnancy to term for the individual or couple. After delivery, the surrogate hands the baby over to the intended parents. They will then assume legal parenthood and responsibility over the baby. But what is the legal landscape of surrogacy in Canada? Let us discuss it. 

Surrogacy is a very complex treatment with lots of steps and stages that ensure its success. It is planned carefully over months to years before it can be done. It also takes months or years before the intended parents can finally get their baby. Surrogacy involves:  

• comprehensive study, 
• advice from industry experts, 
• therapy pre-, during-, and post-treatment, 
• medical and mental fitness evaluations for the intended parents and the surrogate,
• legal advice from surrogacy attorneys.

Types of surrogacy

Surrogacy can be traditional or gestational; it can also be altruistic or commercial. Traditional surrogacy is the type where the surrogate is artificially inseminated with the sperm from the intended father in order to get pregnant. This means that she uses her eggs in the process. Gestational surrogacy is the type where the embryo is created using the eggs and sperm obtained from the intended parents. Then, the embryo is grown in the lab for a few days, after which an embryo transfer into the uterus of the surrogate occurs. After that, the surrogate gives birth to the child. The main difference between these two is the existence of a genetic connection or link between the surrogate and the baby. It exists in traditional surrogacy but is absent in gestational surrogacy. 

What type of surrogacy is legal in Canada?

Altruistic surrogacy is the type where the surrogate gets no financial compensation from the intended parents after the surrogacy. Meanwhile, commercial surrogacy is the type where the intended parents pay a fee to the surrogate after the process. Altruistic surrogacy is the only legal form of surrogacy in Canada.

What is the legal landscape of surrogacy in Canada?

Surrogacy is bound by regulations and laws in every country in that it is practised. The intended parents must conduct thorough legal research and extensive consultations before they decide on surrogacy. This is to avoid falling short of the law of the country where they are having their surrogacy treatment. Consultation of surrogacy lawyers cannot be overemphasized in ensuring compliance with the laws regulating surrogacy in the intended parents’ chosen country. They help through advice and guidance throughout the surrogacy process. 

What are some of the regulations for surrogacy in Canada?

In Canada, the Assisted Human Reproductive Act prohibits the acceptance or provision of payment to a woman for the service of surrogacy. This means that it is illegal for the surrogate to accept payments for the service of surrogacy. However, it is legal for the surrogate to be reimbursed for all her reasonable out-of-pocket expenses that were incurred during the surrogacy process. In Canada, some other regulations are:

• The parties that are involved in the surrogacy will not accept any consideration for arranging the services of the surrogate. They will not offer to make such arrangements for the considerations or even advertise the arrangements of such services.
• The intended parents will not offer to pay for or advertise that they will pay a woman to be their surrogate mother.
• No party should 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

These regulations simply mean that in Canada, the following are illegal:

• Payment to a surrogate for carrying out a surrogacy treatment 
• Offering to pay or paying a third party or placing an advert to arrange for the services of a surrogate 
• Trying to get a woman below the age of 21 to engage in surrogacy through advice or medical procedures.

These laws stem from the guiding principles of Canadian laws that explain that the exploitation of the reproductive capabilities of men, women and children for commercial gain is strictly forbidden for health as well as ethical reasons. 

Things to be aware of when considering the legal landscape of surrogacy in Canada

Also, surrogacy is allowed in Canada, so far as the surrogate is making the decisions for herself, with no coercion or inducement, financial or commercial gain, or incentives of any type. It is also illegal to indirectly make payments for the surrogacy itself, either through payments like credit card bills, school fees or mortgage payments. It is also illegal for the intended parents to hire or pay a third party to hire a surrogate. These third parties include surrogacy agencies, fertility clinics, or international medical health agencies. Reimbursement of the surrogate for all her expenses that are directly connected to the surrogacy is also legal in Canada. The surrogate must provide a declaration of expenses before she can be legally reimbursed. This document is signed by the surrogate and contains the following:

• The name and address of the surrogate 
• The nature of the expenditures that were incurred 
• The amount that is to be reimbursed 
• The dates that the expenditures were incurred 
• With travel expenditures, the address points of the departures and the destination, as well as the distance covered written in kilometres 
• A statement that the expenditure was in the course of the process of the surrogacy 
• A statement for each of the expenditures incurred 
• A statement that for each of the expenditures the amount has not been reimbursed by any other source other than the intended parents. This is to confirm that the surrogate has not profited through double recovery. 
• A statement that all the information provided in the declaration is accurate and complete 
• A copy of the doctor’s note or written recommendation authorizing the expenditures

The intended parents or any of their representative agents will then sign the declaration that the expenditures have been reimbursed.