It is a common misconception that surrogacy is illegal in Canada. It is not.
According to a study published in the Journal of Obstetrics and Gynecology Canada in 2017, 1100 babies were born to gestational surrogates in Canada between 2001 and 2014.
The misconception is somewhat understandable given that the governing legislation, the Assisted Human Reproduction Act (the “AHRA”), prohibits the payment or acceptance of payment to or by a woman acting as a surrogate. However, the Act allows women to be reimbursed for surrogacy-related expenses. For years, however, it has not been entirely clear which expenses are legally permissible ones.
The Act, which was passed in 2004, refers to the reimbursement of expenses in accordance with the regulations, yet no regulations were enacted, for years, leaving much grey area for fertility lawyers, intended parents and surrogates across Canada.
In late October 2018, the Trudeau government proposed new regulations to specify those expenses for which reimbursement to a surrogate would be permissible.
The Reimbursement Related to Assisted Human Reproduction Regulations (SOR/2019-193) came into force June 9th, 2019, and reads as follows:
4 The following expenditures incurred by a surrogate mother in relation to her surrogacy may be reimbursed under subsection 12(1) of the Act:
- travel expenditures, including expenditures for transportation, parking, meals and accommodation;
- expenditures for the care of dependents or pets;
- expenditures for counselling services;
- expenditures for legal services and disbursements;
- expenditures for obtaining any drug or device, as defined in Section 2 of the Food and Drugs Act;
- expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the post-partum period;
- expenditures for obtaining a written recommendation referred to in paragraph (f);
- expenditures for the services of a midwife or doula;
- expenditures for groceries, excluding non-food items;
- expenditures for maternity clothes;
- expenditures for telecommunications;
- expenditures for prenatal exercise classes;
- expenditures related to the delivery;
- expenditures for health, disability, travel or life insurance coverage; and
- expenditures for obtaining or confirming medical or other records.
The Regulations also set out preliminary requirements for reimbursement and, reimbursement for loss of work-related income due to surrogacy is addressed separately in the regulations, in conjunction with paragraph 12(3) of the AHRA.
While some feel the new regulations are a positive step towards greater certainty and confidence in abiding by the laws surrounding surrogacy in Canada, others feel the regulations are a step in the wrong direction, inappropriately restricting the bounds of surrogacy and, specifically, excluding many legitimate surrogacy-related expenses as such expenses are certainly not consistent or predictable across the board. The later generally advocate for decriminalization of all aspects of surrogacy in Canada, altogether.
Either way, if you are seriously considering surrogacy to build your family, it is wise to consult with a fertility lawyer as soon as possible.