The Legality of Surrogacy for Gay Couples in Canada

Surrogacy is a complex fertility treatment where a woman who is known as the surrogate mother agrees to carry and deliver a baby for another individual or a couple referred to as the intended parent or parents. After the child has been delivered, the intended parents take the legal parenthood and responsibility of the child. Surrogacy has enabled people who otherwise could not have their biological children that chance of having it. This includes infertile or sterile couples, single males and females and also same-sex couples. However, it is important to understand the legality of surrogacy for gay couples in Canada to be properly prepared for the journey.  

Surrogacy has gained so much popularity that fertility agencies advertise the treatment for couples and make specialized surrogacy packages for them. Surrogacy is also controversial, with the treatment subject to different laws in different countries, sometimes even having different laws in different states in the same country. In some countries like Russia and Georgia, gay surrogacy is illegal and prohibited. But in other countries like Canada, Cyprus, the USA, Kenya and others, gay surrogacy is legal.

Surrogacy environment in Canada

Why is Surrogacy Illegal in Canada?Most people ask, “Why is surrogacy illegal in Canada?” In Canada, surrogacy is legal, but the procedure cannot be made commercially available. This means that it is illegal for any party to make a profit off of a surrogacy treatment. Also, surrogacy contracts cannot be enforced on the surrogate. It is one of the rights of the surrogate mother in Canada. The surrogate ideally is allowed to volunteer herself to carry the baby for the intended parents without any incentives or compensations apart from the reimbursement for all her reasonable expenses that can be traced to the surrogacy treatment. This can be seen as one of the pros of surrogacy in Canada because altruistic surrogacy is what is practised in Canada. It is crucial to understand the legality of surrogacy for gay couples in Canada.

Some more pros and cons of surrogacy in Canada

In Canada, surrogacy agencies are banned from arranging the services for compensation or charging fees for overseeing the pregnancy or cycle of a surrogate. This means that each surrogacy arrangement should ideally be conducted independently in accordance with the law. Also, while a surrogacy agreement or contract is not enforceable, it is still a requirement by fertility clinics before they can conduct an embryo transfer for the surrogate. 

The law also states that the surrogacy contract will be used as evidence to show that the intended parents want to be the legal parents of the child and not the surrogate. The agreement is also meant to serve the goals, interests and specific needs of both the surrogate and the intended parents. After the birth of the child, with written consent from the surrogate, the intended parents can begin proceedings for a birth registration and parentage declaration for the child, usually done by their surrogacy lawyer.

Legality of gay surrogacy in Canada

The passing of the “All Families are Equal Act” in Canada was a great step for the Canadian surrogacy environment. This act ensured that the law accepted the legal status of all parents. This is regardless of their gender identity, sexual orientation, or the manner of conception of the baby. This came as very welcome news for same-sex couples who had the intention of using surrogacy to expand their families. It meant that it was not only adoption that was open to them to become parents of their babies.

What are some of the benefits of surrogacy for gay couples in Canada?

Some of the advantages of gay surrogacy in Canada are as follows:

Low-cost of surrogacy 

People ask “Is surrogacy free in Canada?” and the answer is no. The cost of surrogacy is much lower, almost half the cost when compared with some other countries like the USA. In the USA, for example, an agency-mediated surrogacy could cost up to 150k dollars, while in surrogacy clinics it may be about 85k CAD, which is equivalent to about 75k dollars. This discrepancy can be traced to the low cost or fees of the agency, and the low compensation for the surrogate. Canada also ensures that national healthcare services are provided to the surrogates. This can mean that there will be fewer medical fees during the pregnancy period and the delivery of the child.

LGBT surrogacy is allowed 

While countries like Russia, Ukraine and Georgia allow only heterosexual married couples to get the surrogacy treatment, such limitations do not exist in Canada. Gay surrogacy is allowed in Canada, and also it does not limit the people who want surrogacy based on their marital status. Therefore, gay couples can find any lgbt surrogacy agency to aid their surrogacy journey. 

Neonatal care 

In the surrogacy clinics found in Canada, the neonatal care provided to the child is publicly funded and also specialized. However, this does not cover the children born to a foreigner. If the baby has to be put in an incubator or the ICU, the parents would have to bear the cost, and this can be up to a thousand dollars a day.

Foreign intended parents 

Unlike in Georgia, where surrogacy and egg donation treatments are only reserved for their citizens, Canada allows foreigners to participate fully in the surrogacy process.

Fair in the granting of parents’ legal rights 

In Canada, after the birth of the child, the intended parents can be declared as legal parents without a lot of stress or hassle. They can be issued with the birth certificate in as little as a few weeks. The top surrogacy clinics in Canada also offer a surrogate home, postnatal care follow-up, and prenatal care services.

What are some of the risks of having a surrogacy in Canada?

While there are a lot of benefits to having a surrogacy arrangement in Canada, some disadvantages exist. Some of them are:

Only altruistic surrogacy is allowed 

This ensures that there are fewer surrogates available, meaning that there is usually a waiting list for surrogate mothers. This means that in Canada, finding a surrogate may take months to years.

Prohibitions on Surrogacy Agencies 

The matching of intended parents with surrogate mothers is prohibited by Canadian surrogacy laws. This means that inexperienced intended parents are left to find surrogate mothers via online forums or groups. They are very much left to navigate themselves through the surrogacy journey, which is not ideal as they may be vulnerable.

Surrogacy compensations 

Even though there are no compensations for Canadian surrogates, the cost of surrogacy in Canada is much higher when compared to some Eastern European countries like Georgia and Ukraine, as well as some Latin American countries like Mexico, Columbia and Argentina. So when people ask “Is surrogacy free in Canada?” or they want to know the cons of surrogacy in Canada, this is one of the answers. The unexpected expenses that may arise from hospital visits or medical complications can cause the planned budget to be higher. It is one of the reasons to understand the legality of surrogacy for gay couples in Canada.