Who Can Benefit From Surrogacy in Canada?

Canadian Laws regarding surrogacy are strict for all parties involved in the process. So, it is no wonder we often ask who can benefit from surrogacy in Canada. However, to understand this, we need to discuss how surrogacy works.

How Does Surrogacy Work? 

Surrogacy is where a surrogate mother agrees to get pregnant and deliver a baby for an individual or a couple that is known as the intended parent or parents. After birthing the baby, the surrogate hands the baby over to the intended parents. They take legal steps to become the child’s legal parents and take over all parental responsibilities. This prevents surrogate mothers from changing their minds or getting attached to the child. 

Surrogacy is a growing global phenomenon that affords individuals who previously would have found it impossible to have their biological children a chance of that. The treatment has been helped by a lot of technological advancements and scientific milestones. However, surrogacy is not an easy or cheap fertility treatment to conduct. It requires a lot of preparation and research by the intended parents before they can carry it out. It also requires consultations from professionals, mental strength because the process is an emotional rollercoaster, medical fitness evaluations, counselling from therapists during and after the process and a lot of legal guidance and advice.

Types of surrogacy 

Surrogacy can be either altruistic or commercial; it can also be gestational or traditional. Altruistic surrogacy implies that the surrogate is offering to carry out the treatment with no financial compensation in mind. But she will be repaid for all expenses that are connected to the surrogacy process. This is the type of surrogacy that is legal in Canada. In commercial surrogacy, the surrogate gets a financial payment after a successful surrogacy, the amount which is discussed and agreed on before the start of the process. 

Traditional surrogacy is the type of surrogacy where the surrogate gets pregnant through artificial insemination using her own eggs, with the sperm obtained from the intended father. Gestational surrogacy is the type where an embryo is created from the egg and sperm obtained from either the intended parents or from donors. The embryo is then grown in the lab for a few days before being transferred to the surrogate’s uterus. The surrogate then carries the baby to term and then delivers.

Who can benefit from surrogacy in Canada?

Due to the process by which surrogacy is done, it is a very controversial topic. The treatment is regulated differently in different countries. So, where is surrogacy legal?  

In some countries, it is outright illegal while in others, it faces severe restrictions. Still, in some other countries, there are no specific laws that address the treatment. For example, in Georgia, surrogacy is only legal for citizens; foreigners cannot access it. In Russia, surrogacy is only legal for heterosexual married couples who have a medical reason for seeking it. In Cyprus, Kenya and Nigeria, there are no specific laws that address surrogacy; therefore, anything goes in those countries. However, in Canada only altruistic surrogacy is legal. This means that it is illegal to pay a surrogate for surrogacy in Canada. Apart from that, the Canadian law does not discriminate against anybody that may need surrogacy. Surrogacy provides an avenue for people that it would normally be impossible for them to have their biological children a chance for that. This includes:

• Infertile couples 
• Same-sex couples 
• People who have an injury to their reproductive organs 
• Individuals whose illnesses affected their reproductive organs 
• People with genetic issues that prevent them from having children 
• Single people who desire children for one reason or another

The above-listed groups can all access surrogacy in Canada with no discrimination, unlike in certain other countries.

Process of surrogacy in Canada 

The intended parents usually find a suitable surrogate who ticks all their boxes. They then have an understanding and an agreement with her. After they have agreed, they enter into a surrogacy contract or an agreement that will be signed by both parties. The terms of the contract clearly state that:

• The surrogate will serve as the child’s biological mother
• Once the child is born, they will be handed over to the intended parents 
• The intended parents will become the legal parents of the child after the birth

The surrogacy agreement is very important. Without it, the surrogate is considered the legal parent of the child. The contract will be written by the legal counsels of the intended parents and the surrogate and they must be separate and independent. The intended parents will usually become the legal parents of the child after delivery if the following occurs:

• None of the parties withdraw from the contract before the conception of the child 
• The surrogate gives written consent after the birth of the child giving it up to the intended parents 
• The intended parents take the child into their care

Things to note about surrogacy in Canada

The surrogate cannot be financially compensated for the surrogacy treatment in Canada, as it is illegal. However, she can be repaid for all her reasonable expenses that are tied directly to the surrogacy treatment. She cannot be compensated from another source and still claim benefits from the intended parents. This is why the surrogate must certify that she has not received any repayment from any other source before claiming her reimbursement from the intended parents. An example of this is in reimbursement for wage loss. The surrogate must not have received wage loss benefits from any other source, like disability benefits or employment insurance, and then also claim full benefits from the intended parents. This act will be termed double recovery and it is illegal in Canada. 

In this example, the surrogate can only claim the difference between the net wage loss and the benefits received. This is the reason it is important for intended parents, especially first-timers, to work with a surrogacy agency that understands the laws and regulations surrounding surrogacy in Canada and has a solid financial program in place to ensure the surrogate’s compliance with the laws and rules. This will ensure that the intended parents and the surrogate are protected from the repercussions of running afoul of the law. All the documentation surrounding the surrogacy process must also be kept for at least six years in Canada. This is a new directive under Canadian regulations.