Surrogacy in Canada

Surrogacy is legal in Canada, provided that it is an altruistic (unpaid) act. In 2004, the federal government of Canada passed the Assisted Human Reproduction Act (AHRA), which criminalized commercial (paid) surrogacy. The validity of surrogacy contracts and the process for establishing the child's parentage is governed by provincial and territorial laws.

Surrogacy is increasingly becoming more common in Canada due in part to the rise of infertility issues, and International intended parents being attracted by the high-quality universal health care and relatively liberal regulations. However, Canada's surrogacy laws are still subject to criticism, and many have pushed for revision of the law since the Act was passed.

Legal restrictions

Based on the 1993 report by the Royal Commission on New Reproductive Technologies, as well as input from experts and individuals directly affected by assisted human reproduction technology, the federal government of Canada passed the Assisted Human Reproduction Act in 2004.^[1]  It makes it illegal to pay a surrogate, egg donor, or sperm donor in Canada. It also criminalizes commercial "intermediaries," such as surrogacy agencies, from arranging surrogacy services or matching prospective parents and surrogates.^[1] The Act establishes a minimum age of 21 for surrogates.^[2]

While monetary or other gain is illegal, the Act allows the intended parent(s) to reimburse a surrogate for out-of-pocket expenses incurred in relation to the surrogacy. Including maternity clothes, medications, and travel.^[3] A surrogate may be reimbursed for lost wages; however, a doctor must declare in writing that bed rest is medically necessary for this reimbursement to be legal. Receipts must generally back reimbursements and cannot result in financial gain for the surrogate.^[4]

As of 2018, there has only been one conviction under the Act: a 2014 case in which an Ontario company, Canadian Fertility Consultants, was fined $60,000 for purchasing eggs and paying surrogates.^[5][6]

Provincial and territorial laws overview

The federal government determines and maintains surrogacy laws, while provincial and territorial governments oversee surrogacy agreements and parental rights. The intended parent(s) go through the parentage declaration process to be recognized as the child's only legal parent(s). However, this process and the requirements that must be met for the declaration to be approved vary depending on the province/territory, resulting in some cases where the intended parent(s) must adopt the child.^[7]

Surrogacy contracts and parental rights laws have been found to use heteronormative assumptive language. Some provinces have addressed this choice of language to be more inclusive. In 2016, Ontario passed the All Families Are Equal Act, which meant that parentage laws had to be reworked for families with only one or more than two intended parent(s) and include inclusive language for same-sex couples.^[8]

Alberta

In Alberta, a court order is required for parentage declaration. If there is no genetic link between the child and at least one of the intended parents, parents will have to go through the adoption process. If only one parent has a genetic link, they will appear solely on the birth certificate, and the other parent will have to adopt the child.^[9][7]

British Columbia

Intended parent(s) have two options for establishing parental rights: they can go through the administrative process of a statutory declaration or, if necessary, a court-ordered parentage declaration. No genetic link between the intended parent(s) and the child is required for parent(s) to appear on the birth certificate. Up to 6 parents can be listed on the birth certificate.^[7]

Manitoba

While no genetic connection is required, the surrogate's name is initially listed on the birth certificate along with the intended father (if there is one). The surrogate's name will be removed or replaced when a court-ordered declaration of parentage is approved.^[9]

New Brunswick

The surrogate's name and the intended father (if there is one) are initially listed on the birth certificate. The surrogate's name will be removed or replaced when a court-ordered declaration of parentage is approved. However, if neither intended parent has a genetic link with the child, they will have to adopt the child.^[9]

Newfoundland

Intended parents can apply for interim custody before the birth of the child; however, the surrogate's name will appear on the birth certificate initially. Intended parents will go through the parentage declaration process before appearing on the birth certificate. If there is no genetic link between the child and at least one of the intended parents, parents will have to go through the adoption process.^[9][7]

Northwest Territories

There are no clear laws or guidelines for intended parent(s) and surrogates. While parentage declarations are available, adoption is believed to be the preferred or more commonly used legal process for establishing parentage in the Northwest territories.^[7]

Nova Scotia

In Nova Scotia, a court-ordered declaration of parentage is required. Surrogates, alongside intended fathers (if there is one), are named on birth certificates; however, the surrogate’s name will be replaced/removed once a court order is approved. If there is no genetic link between the intended parent(s) and the child, an adoption process will be required.^[7]

Ontario

In Ontario, the intended parent(s) can go through the administrative process of a statutory declaration or a court-ordered declaration of parentage. However, if the intended parent(s) choose the statutory declaration process, it can only be signed by the surrogate a week after the birth. Whereas a court-ordered parentage declaration can be processed immediately after birth. Up to 4 parents can be listed on the birth certificate.^[9][7]

Prince Edward Island

As of March 2021, an administrative process rather than a court-ordered process is legal for establishing parentage. However, the surrogate's name will still initially appear on the birth certificate, and a court order is required for the name to be removed from the birth certificate.^[9][7]

Quebec

In Quebec, birth certificates can solely list the surrogate name or the intended father's (if there is one) name. Alternatively, they can list both the surrogate's and the intended father's (if there is one) names. The other intended parent (if there is one) must go through the adoption process to establish parentage. If neither intended parent has a genetic link with the child, parents must go through the adoption process.^[9][7] Until it was repealed on June 6, 2023, Article 541 of the Quebec Civil Code rendered all surrogacy contracts null.^[10][11] In a 2009 case, a Quebec surrogate gave up her legal claim to her baby, having made an arrangement with a couple. The intended father was recognized as a legal parent because his sperm had been used to conceive the child, but the court denied any legal rights to the intended mother, leaving the child with no legal mother.^[12] In four subsequent cases, Quebec courts have allowed intended parents to adopt a child born via surrogate.^[13]

Saskatchewan

A court-ordered parentage declaration and a pre-existing surrogacy agreement are required. Surrogates are initially listed on the birth certificate alongside the intended parent(s). However, no genetic link is required to establish parental rights in Saskatchewan.^[9][7]

Yukon and Nunavut

In Yukon and Nunavut, no clear information is available on guidelines or laws for how intended parents establish rights; however, parentage declarations are available.^[7]

Increase in Canadian surrogacies

Surrogacy in Canada has increased in popularity over the past two decades.^[14] Between 2001 and 2012, 803 IVF-conceived births were recorded for gestational surrogates in Canada (statistics on traditional surrogacies - are not available).^[15] There are many reasons a person or couple would choose to use a surrogate.^[16] Primarily, the rise of infertility (a study found that 1 in 6 Canadians can face fertility issues)^[17] and Same-sex couples choosing to have children^[16] have been linked with this rise. The increase in surrogacies is also connected to Canada becoming a popular site for international surrogacy.^[18]

International surrogacy

The increased demand for surrogates and the limited amount of people willing to be surrogates has led many to seek surrogacy agreements internationally.^[19] Canada is one of the few countries which allows international surrogacy and does not discriminate on the basis of marital status or sexual orientation.^[18] However, surrogacy agreements and parentage laws differ from those set out for surgery agreements between Canadian intended parent(s) and Canadian surrogates.

International intended parent(s) with a Canadian surrogate overview

Canada has become an attractive location for foreign intended parent(s). This is in part due to its high-quality universal health care and relatively liberal regulations that may be easier to navigate than those in the intended parent(s) home country.^[18] While it is illegal under the AHRA for Canadians to pay a surrogate, Canadian surrogates may legally accept payment from the international intended parent(s), provided that the transaction occurs outside Canada.

In 2016 and 2017, 45 of 102 babies born to surrogates in British Columbia had intended parent(s) outside of Canada (nationwide statistics are not collected).^[18]

Canadian intended parent(s) with an international surrogate overview

Children born through international surrogacy with at least one intended parent being a permanent Canadian citizen are considered Canadian citizens from birth. Importantly, this parent does not have to be genetically related to the child; however, they do have to have legal documents proving parentage.^[20]

Critiques

Criticism of federal surrogacy law

Canada's strict surrogacy laws were partly founded on feminist fears that commercial surrogacy in Canada could result in women being exploited.^[21] Despite this rationale, some debate the law and raise concerns that it may be causing more harm than good. While some believe the law needs to be reworked, others argue that commercial surrogacy should be legal altogether.^[22]

They argue that while it is illegal for surrogates to profit from their own bodies financially, the ambiguous language behind the law is problematic and can result in exploitation. That is, while surrogates cannot be paid, there are surrogacy agencies that can accept payments. These agencies advertise services that help surrogates and intended parent(s) navigate the complex laws surrounding surrogacy. There are no clear guidelines from the federal, provincial or territorial governments stating how these agencies can be monetarily compensated for their part in the surrogacy process. Therefore, some argue that this allows the agencies to function through the grey areas of law and profit from unpaid surrogates.^[22]

Criticism of international surrogacy in Canada

Another leading issue in the Canadian surrogacy law debate centres around international surrogacy. Many argue that babies born in Canada with international intended parents should not automatically have Canadian citizenship. This argument is hotly debated as it does not seem to be founded in genuine cases where Canadian surrogacy was chosen so that the child would have Canadian citizenship.^[22]

International surrogacy concerns expand into how it affects Canadian healthcare. While Canadian taxpayers fund Canada's healthcare system in international surrogacy cases, it is accessed and benefits an international audience^[23]

Further critics revolve around fears for Canadian surrogates who are left with the child if internationally intended parent(s) back out of the surrogacy agreement.^[23]

Notable case

In 2011, Cathleen Hachey, a New Brunswick, agreed to be a surrogate for a British couple; however, three months before the due date of the twins, the intended parents split up and decided to back out of the agreement. While Hachey was legally responsible for the children as she had been the egg donor, she was able to find an adoptive family; this case increased concerns surrounding international surrogacy.^[24]

See also

• Fertility tourism
• Surrogacy laws by country
• Surrogacy in India
• Surrogacy in New Zealand
• Surrogacy Arrangements Act 1985

References

1. Canada, Health (2013-07-10). "Prohibitions related to Surrogacy". www.canada.ca. Retrieved 2024-10-27.
2. Branch, Legislative Services (June 9, 2019). "Consolidated federal laws of canada, Assisted Human Reproduction Act". laws-lois.justice.gc.ca.
3. Canada, Health (2019-10-28). "Guidance document: Reimbursement related to Assisted Human Reproduction Regulations". www.canada.ca. Retrieved 2024-10-27.
4. "Surrogacy and IVF in Canada: What you need to know". toronto.citynews.ca. 9 January 2019.
5. "What should be done about Canada's assisted reproduction laws?". The Globe and Mail. 13 April 2018.
6. Motluk, Alison (February 4, 2014). "First prosecution under Assisted Human Reproduction Act ends in conviction". CMAJ. 186 (2): E75 – E76. doi:10.1503/cmaj.109-4687. PMC 3903755. PMID 24366888.
7. "Establishing Parentage for Surrogacy Babies Across Canada". canadafertility.law. Retrieved 2024-10-28.
8. "Ontario Newsroom". news.ontario.ca. Retrieved 2024-11-19.
9. Page, Stephen (2022-04-28). "Quick overview of Canadian surrogacy laws". Page Provan. Retrieved 2024-10-27.
10. "Quebec surrogacy contracts may soon be recognized | CBC News".
11. "Article 541 - legislative History".
12. "Born to surrogate, child has no legal mother, Quebec judge rules | CBC News".
13. Morawetz, Colleen (November 20, 2015). "Whose Kid Is It Anyway? Parentage Contracts for Surrogacy in Quebec".
14. "International Surrogacy for Canadians". Sprout Family. Retrieved 2024-11-19.
15. White, Pamela M. (January 1, 2016). "Hidden from view: Canadian gestational surrogacy practices and outcomes, 2001-2012". Reproductive Health Matters. 24 (47): 205–217. doi:10.1016/j.rhm.2016.06.006. PMID 27578354.
16. "10 Reasons People Use a Surrogate Mother". Family Tree Surrogacy. Retrieved 2024-11-19.
17. "As more Canadians seek IVF treatment, advocates warn about infertility 'crisis' - National | Globalnews.ca". Global News. Retrieved 2024-10-30.
18. "How Canada became an international surrogacy destination". The Globe and Mail. 5 October 2018.
19. "International Surrogacy for Canadians". Sprout Family. Retrieved 2024-11-19.
20. Immigration, Refugees and Citizenship Canada (2014-03-26). "Who is a parent for citizenship purposes where assisted human reproduction (AHR), including surrogacy arrangements, are involved". www.canada.ca. Retrieved 2024-10-28.
21. Deckha, Maneesha (2015). "Situating Canada's Commercial Surrogacy Ban in a Transnational Context: A Postcolonial Feminist Call for Legalization and Public Funding". McGill Law Journal / Revue de droit de McGill. 61 (1): 31–86. doi:10.7202/1035385ar. ISSN 0024-9041.
22. Star, Robert Cribb Foreign, Emma Jarratt Special to the (2016-09-18). "Canada's vague surrogacy laws may be doing more harm than good". Toronto Star. Retrieved 2024-10-28.
23. Parks, Jennifer. "Caution's needed in shaping surrogacy laws". Policy Options. Retrieved 2024-10-29.
24. Reporter, Cynthia Vukets Staff (2011-09-09). "Surrogate mother's nightmare". Toronto Star. Retrieved 2024-11-19.

External links

• Assisted human reproduction - Health Canada
• Prohibitions related to Surrogacy - Government of Canada