Why is Surrogacy Illegal in Canada?

Surrogacy is a fertility treatment where a woman who is referred to as the surrogate agrees to carry and deliver a child for a couple or an individual who is referred to as the intended parents or parent. Surrogacy is a complex process that is subject to different regulations in different countries. In some countries, even the regulations vary from state to state. In order to understand the legality of surrogacy in Canada, it is crucial to understand the different types of surrogacy.

What are the types of surrogacy?

There are two forms of surrogacy that are widely practised, and they include:

Traditional or altruistic surrogacy

In this form of surrogacy, the surrogate is meant to agree to the surrogacy for altruistic and not commercial reasons. This means that the surrogate is not expected to be paid for her services, but is meant to be compensated for her reasonable medical expenses that are directly connected to the pregnancy. The surrogate uses her eggs and gets pregnant through artificial insemination or intra-uterine injection of sperm from the intended father. The woman then carries the pregnancy to term, delivers and gives the baby over to the intended parents. 

There exists a genetic relationship between the surrogate and the baby because the surrogate uses her eggs to get pregnant. This type of surrogacy can lead to legal complications, especially in the instance that the surrogate changes her mind about giving up the baby to the intended parents after the delivery. This type of surrogacy is cheaper and less complex than the other forms of surrogacy. However, because there may be legal complications in this form of surrogacy, it is not popular with fertility agencies that offer surrogacy services. However, this form of surrogacy is the only legally allowed surrogacy in countries like Australia and Canada.

Commercial or gestational surrogacy 

This is the most widely practised and popular form of surrogacy. In this form of surrogacy, there is usually an agreed fee that is paid to the surrogate after the surrogacy process. Another major difference in this form of surrogacy is how the embryo is created. The egg and sperm from the intended parents or donors are obtained. They are then mixed in vitro in the lab to create an embryo. The embryo is then grown in the lab for some days. Some tests may be done before the embryo is transferred into the uterus of the surrogate. 

After that, the surrogate gives birth to the child. This way of the embryo creation ensures that there is no genetic relationship between the baby and the surrogate, and this is the major advantage of commercial surrogacy. This type of surrogacy is preferred by some countries and the majority, if not all, of fertility agencies that offer surrogacy services. This is because there are no genetic relationships between the surrogate and the baby. The legal complication where the surrogate may claim the baby after delivery does not happen. 

This form of surrogacy is more expensive and more complex than traditional or altruistic surrogacy. It is also completely illegal in Canada. It is legal in countries like Kenya, Cyprus, Albania, etc. The reasons this form of surrogacy is illegal in Canada range from problems with the legal rights of the children, issues in deciding their citizenship and also complications with the arrangements with the surrogates including bonded labour.

Surrogacy Law in Canada 

As already stated, commercial or gestational surrogacy is illegal in Canada, and traditional or altruistic surrogacy is the only legally allowed form of surrogacy. The Assisted Human Reproductive Act of Canada prohibits the provision or acceptance of consideration to a woman for the service of surrogacy. It is illegal to pay a surrogate for the service rendered. This, in effect, makes commercial surrogacy illegal. It is legal, however, to reimburse the surrogate for her reasonable medical expenses that were incurred due to the pregnancy and other expenditures that directly relate to the surrogacy itself. The other regulations surrounding surrogacy in Canada include:

• The parties concerned agree not to take payment in exchange for arranging a surrogate’s services, nor will they offer to arrange such services in exchange for payment or publicize such arrangements.
• Nobody is allowed to 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 years of age.
• The intended parents must not offer to pay or advertise that they will pay a woman to become a surrogate.

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

• Paying a surrogate for her services
• Offering to pay or paying a third party to or even placing an advert for the arranging of a surrogate
• Trying to get a woman who is below the legal age to engage in surrogacy either through advice, persuasion or through medical procedures

Conclusion 

Surrogacy is not illegal in Canada; commercial surrogacy is. These prohibitions are all based on the guiding principle of Canadian regulations that explain that the exploitation of the reproductive capabilities of men, women and children for commercial purposes is strictly forbidden due to health and ethical reasons. This is why the Canadian government allows the more altruistic forms of surrogacy. This means that as long as the surrogate is deciding on surrogacy by herself, without any form of external coercion, financial gain, or commercial gain, then the surrogacy is allowed by the Canadian government. 

The woman can still be reimbursed for her medical expenses and other expenditures that are directly tied to the surrogacy process. It is also illegal to pay these fees indirectly in the form of mortgage payments, school fees or credit card bills. It is also illegal for the intended parents to hire or pay a third party, like fertility agencies to hire surrogates.