Whether you live in Canada or are considering international travel for gestational surrogacy or egg/sperm donation, you might be considering international gestational surrogacy. Canada, as one possible option, has several important differences in infertility treatment compared to the United States. The laws, however, can be a little confusing, causing many people to ask themselves, “Is surrogacy legal in Canada?” Because of this, it is important to understand the laws governing treatment.
Don’t worry; we’ve done the research for you! If you’ve got questions about pursuing infertility treatment in Canada, read on for more information about the surrogacy laws in Canada and what to expect.
Is surrogacy legal in Canada?
It’s complicated. There are some cases where surrogacy is legal, but the process is very different from surrogacy in the United States. While like the United States – it can vary from province to province – gestational surrogacy in Canada is mostly regulated on a federal level, it is extremely important to consult with a Canadian attorney who specializes in the Canadian fertility laws prior to committing to a cycle there.
What are the surrogacy laws in Canada?
The Assisted Human Reproduction Act of Canada (AHRA) was passed in 2004 and is the main law governing gestational surrogacy. Canada has very strong restrictions on how surrogacy and egg or sperm donation can take place. Provisions in the law include:
- Surrogacy cannot be a compensated agreement, meaning that an intended parent cannot pay a woman to act as a gestational surrogate.
- Altruistic surrogacy, however, where a woman agrees to be a surrogate without compensation (out-of-pocket expenses can be reimbursed) is legal.
- Agencies, attorneys or third parties also can’t be paid for introducing a potential surrogate to a couple.
There are additional restrictions related to egg and sperm donation that may be relevant, depending on an intended parent’s medical situation. It is illegal to buy or sell eggs or sperm in Canada; all donations must be altruistic.
It is also illegal to purchase eggs or sperm from someone acting on the donor’s behalf. Some clinics are able to legally operate as a frozen egg bank, depending on how they run their bank.
Not abiding by the AHRA can have very serious consequences. According to the law, someone violating the AHRA can face up to $500,000 in fines and 10 years in prison.
What are the benefits to gestational surrogacy in Canada?
There are some pretty significant benefits to doing a gestational surrogacy cycle in Canada. The primary advantage is the cost, with a cycle being significantly less expensive than in the United States. A cycle in the U.S. can easily run over $100,000, especially once you account for the IVF cycle, pregnancy healthcare costs, plus fees to the surrogate and other professionals involved in managing the cycle.
In Canada, a cycle can be a fraction of this cost because the surrogate does not receive a fee beyond reimbursement for her expenses. In addition, in some situations, government healthcare or insurance may cover some of the health-related costs. It is important to work with an agency with knowledge and experience in Canadian surrogacy so that they can help you figure out if this may be an option in your specific case.
In addition to a decreased cycle cost, other associated costs, like travel, medical insurance, and medications, are also much lower than in the United States.
Another benefit is that all babies born in Canada are granted Canadian citizenship at birth. This means that parents are able to easily – and quickly – go back home using the baby’s Canadian passport.
Finally, because surrogates are not financially compensated for the cycle, you can rest assured that the woman you decide to work with truly has only the best of intentions. Though it is rare that a surrogate is only “in it for the money,” working with someone who is not receiving compensation removes any doubt that may remain.
What are the risks to gestational surrogacy in Canada?
While the benefits are strong, there are some potential risks when it comes to doing a gestational surrogacy cycle in Canada. First, because gestational surrogacy must be uncompensated, it can be a little more difficult to find someone to work with, though Extraordinary Conceptions is hoping to be able to match their clients within 3-6 months.
In addition, surrogacy laws in Canada require that a couple using a surrogate apply for a parentage order after birth of the baby. It is not possible to obtain a pre-birth order before the baby is born. In most cases, this post-birth order can be obtained quickly and without difficulty; usually only taking a few weeks depending on the province. There is a possible risk of not having a pre-birth order that either the intended parents can back out of the arrangement, or that the surrogate can decide that she does not want to relinquish custody.
However, while it seems scary, it is important to realize that it is believed that most courts would uphold and honor the intent of the signed contract, especially if DNA testing were to prove that the baby was not biologically related to her. This also has never happened, making the likelihood very slim. According to reproductive attorney Sherry Levitan,
Every province has its own regulatory scheme. We have had a handful of disputes in Canada and the surrogate has never won custody of the child, even in one case where she was a traditional surrogate! The premise is always that the birth mother has rights, but that premise can be overturned by legislation, contract law or common law. This is very reassuring to intended parents pursuing surrogacy in Canada!
The bottom line
Is surrogacy legal in Canada? Yes, though the surrogacy laws in Canada work a little differently than they do in the United States. If you are considering a gestational surrogacy in Canada, it is imperative to consult an attorney who specializes in gestational surrogacy. Canada has a different governing law, which can impact how a cycle can be performed.
In almost all cases, it is better to use an experienced surrogacy agency in order to ensure that the cycle can move forward in an efficient, safe and legal manner. If you’re ready to move forward on your surrogacy journey, give us a call and we’ll connect you with a case manager who can help get you started!