What Is Surrogacy?

Surrogacy is the act of a woman carrying a baby for another person.

There are two types of surrogacies:

Gestational surrogacy: The surrogate agrees to carry a child for a couple. The eggs of the intended mother or egg donor are used as opposed to the eggs of the surrogate.

Traditional surrogacy:The surrogate is usually the egg donor as well as the carrier of the baby.

What law governs surrogacy in Canada?

The Assisted Human Reproduction Act (AHR Act) 2004 is currently the legislation that governs surrogacy in Canada.

Surrogacy is legal in Canada however payment to an agency or surrogate is prohibited.

What impact does the prohibition on payment to a surrogate have on surrogacy contracts?

Section 6 of the AHR Act prohibits anyone from paying a person to act as a surrogate. It also prohibits anyone from receiving payment for arranging, offering to arrange, or advertising to arrange the services of a surrogate so any payments for surrogacy services made after section 6 is brought into force will constitute a criminal offence.

This prohibition does not affect the validity under provincial law of any agreement or contract under which a person agrees to be a surrogate (subsection 6(5)). In addition, the AHR Act does not prohibit altruistic surrogacy arrangements.

What impact does the prohibition on arranging surrogacy services - for payment - have on AHR clinics, doctors and lawyers?

Section 6 prohibits anyone from receiving payment for arranging, offering to arrange or advertising to arrange for the services of a surrogate. It does not prevent an AHR clinic from being paid for the provision of AHR procedures to a surrogate mother. It does not prevent a doctor from providing medical care to a surrogate. It does not prevent a lawyer from being paid for providing legal advice or services to a surrogate or to a commissioning couple. What is prohibited is for anyone - for payment - to act as the intermediary arranging for surrogacy services.

Surrogates will be able to reimbursed for any actual, receipted, out-of-pocket expenditures incurred in relation to her surrogacy.

Expenditures Related To Surrogacy

This list is not exhaustive:

  1. Personal Food Consumption: Surrogates are frequently asked to refrain from a diet high in processed foods, and to instead adopt one high in fiber and nutrients, often requiring organic foods. Such food is commonly more expensive than processed food.
  2. Household help: A pregnant surrogate may need assistance in her last trimester, whether or not she faces health conditions related to the pregnancy. This is particularly true where multiple births are involved.
  3. Childcare: This should be available whenever the surrogate needs relief, and not only when she needs to attend a scheduled appointment. Childcare should not be conditional upon medical advice.
  4. Appliances for pregnancy: Some examples of appliances commonly used during pregnancy are pillows, foot rests or varicose vein hosiery.
  5. Vitamins and supplements.
  6. Yoga classes or gym membership.
  7. Life insurance: In practice, almost all intended parents obtain life insurance in the event of a death of the surrogate to provide for the surrogate’s next of kin.
  8. Communication costs: land lines and cell phones. Intended parents should bear the cost of communication with the surrogate.

Reimbursement Of Loss Of Work-Related Income For Surrogates

Reimbursement for loss of work-related income for surrogates would occur only where a qualified medical practitioner certifies in writing that there is a risk to the surrogate’s health or to the health of the embryo fetus. The loss of work-related surrogates should be defined in a manner that would capture legitimate “sick days” or time taken off work due to the pregnancy, even though there may not be a direct “risk” to the surrogate’s health or that of the embryo fetus. For example, extreme morning sickness may not be a health risk, but may be such that the surrogate is unable to work. That absence would be a direct consequence of her surrogacy, and she would lose work-related income.
In addition, a pregnant woman can start to collect Employment Insurance maternity benefits as early as eight weeks before her anticipated due date, without a certificate from a doctor. This suggests that the federal government recognizes that pregnant women may well have health-related needs in the last two months of pregnancy.

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