Surrogacy in Canada
Secure options for those willing to do the detailed legwork
Surrogacy in Canada is legal but highly restricted. The legislation allows altruistic surrogacy only, which means surrogate mothers cannot be paid more than basic expenses, agencies that match surrogates and future parents are prohibited, and commercial services that support either the parents or the surrogate are not allowed.
The result is that surrogacy in Canada is possible, but often takes months (or years) to find a qualified surrogate and complete a successful cycle. Unlike surrogacy programs in Asia or Europe, surrogacy in Canada is managed by the parents themselves, who do much of the legwork that would normally be done by a hired surrogacy consultant.
But there are benefits to surrogacy in Canada. Although the national law governing surrogacy in Canada has slightly different implementations in different provinces, the federal law acknowledges the possibility of surrogacy contracts generally. However in Canada the surrogate mother holds all parental rights upon the baby’s birth. The Canadian Federal Act allows for the surrogate to demand custody regardless of the existence of a executed contract or not. As a result, in addition to the surrogacy process itself, Intended Parents considering surrogacy in Canada should anticipate a potentially lengthy adoption or parental transfer process.
At birth the baby born through surrogacy in Canada is eligible for Canadian citizenship. New parents can quickly return to their home country with their baby’s Canadian passport.
Canada also enjoys national health care service, which covers both the surrogate and the delivery. This saves the cost of medical treatments for complication during the pregnancy (or the cost of insurance premiums as in the US). However the social security of Canada does not cover the child of a foreign citizens (even though the baby eventually will have Canadian nationality), so costs of NICU care or an incubator if the baby arrives prematurely are the responsibility of the parents.
Is Surrogacy in Canada legal?
Surrogacy arrangements are legal between surrogate mothers and intended parents, but lack the full enforcement of law. If a gestational surrogate mother changed her mind she would have all rights to the child at birth whether a contract was in place or not (since Canada does not have “pre-birth orders” like in California). If this happened the intended parents would have to sue for custody and hopefully the courts would recognize the contract intent and DNA tests proving genetic parentage.
On the other hand, there also are risks from the Intended Parents, who are also able to ‘change their minds’. Local surrogacy laws are not enforceable regarding the Intended Parents’ obligations, and so there have been cases in which foreign parents abandoned a baby during the pregnancy. In these cases the surrogate was stuck without payment and with a baby that was not hers. In these cases the babies were put up for adoption.
*It’s worth noting that although surrogate mother has the legal right to demand custody, this has never happened. There is no legal precedent as to how local courts would handle such a claim — but it’s hopeful that the surrogacy contract would demonstrate the intent of the arrangement and a DNA test would prove the baby’s true heritage.
The agreement must respect the AHR Act and provincial and territorial laws, so depending on where the surrogate mother and intended parents live, the surrogacy arrangement may be significantly different (or impossible altogether).
Canadian law is very explicit, and is regulated by Bill C-6 (Assisted Human Reproduction Act). The act explicitly places the following constraints on surrogacy in Canada:
- No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
- No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
- No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.
In short, a surrogate mother can only be repaid for out-of-pocket costs if they are directly related to the surrogacy and usually when a receipt is attached. For instance, a surrogate mother may be repaid for loss of work wages if a doctor certifies, in writing, that bed rest is necessary for her health and/or the health of the embryo or fetus. However, costs related to the surrogacy also depend on each surrogate mother’s situation. Likewise it is illegal for professional services that would manage your surrogacy program or recruit a woman to become your surrogate.
What’s the Cost of Surrogacy in Canada?
Canada is actually more expensive than many couples initially think. Total cost may be about $80,000 CAN if everything goes well with the first transfer and your surrogate gets pregnant right away.
It is forbidden to benefit commercially from surrogacy in Canada, but the surrogate is allowed to receive reimbursements for expenses.
The law in Canada does not define what are the eligible expenses and there is no limit. In practice a contract with the surrogate defines eligible expenses at between $ 25,000 – $30,000 USD. If the surrogate is a demanding, experienced surrogate she may ask for extras and travel expenses which can be quite high (e.g. you may have to add on extras for therapy, organic food, wellness, loss of wages, etc.). Medications also may not be included in initial clinic proposals, which can be quite expensive.
In Canada everything may be less expensive than in the typical US programs, although new programs in the United States are less expensive.
- Attorneys’ fees around $12,000
- Clinical procedures about $25,000
- Surrogate compensation about $30,000
- Egg donor from $5000 to $10,000
- Travel, hotel, etc. can be about $5000 to $10,000
So the total cost is typically around $80,000 for a program that includes just one initial embryo transfer. Additional embryo transfers are between $3000 – $5000 for each attempt.
Medical costs for the surrogate and the baby are a mixed bag. All the care of the surrogate before and after childbirth is covered by social security and parents will pay almost nothing. But the care of the baby after the birth is the responsibility of the parents.
Rates of hospital care for a baby are about $1000/day. Most hospitals will require a healthy baby to remain under observation for two to three days in hospital following the birth.
Starting and managing your surrogacy in Canada…
For those parents who decide to continue and navigate the surrogacy process independently, here are some initial steps…
1. Find a local lawyer who specializes in surrogacy cases. A good lawyer takes care of the paperwork and legal issues regarding the surrogate, clinic and egg donor.
2. The surrogate and the donor can be found through online forums. Because there is a shortage of surrogates in Canada, parents should present themselves in a good light to persuade a desirable surrogate to work with them.
3. With the surrogate chosen, parents can pick a reputable clinic that is located near where the surrogate lives. There are quite a few IVF and surrogacy clinics in Canada, and most are reasonably reputable.
There are some surrogacy agencies in Canada that attempt to navigate a very fine line between providing surrogacy services and just offering “consulting” services that don’t actively participate in the surrogacy process. These agencies have a history of running afoul with the government, and many have ongoing litigation or previous fines. All future parents should carefully research any agency or service provider for a history of unlawful activity.
In detail there are many small steps, but surrogacy in Canada can be manageable for parents with the time and patience.