Surrogacy in Canada

In Canada, it’s illegal to pay for the services of a surrogate mother or to purchase human sperm and eggs. Federal law allows only altruistic surrogacy in Canada, agencies that match surrogates with parents are restricted, and commercial services that support either the parents or the surrogate are prohibited.

by William (Bill) Houghton & Sara Cohen LL.B ,
surrogacy in canada

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Surrogacy in Canada is legal but restricted, with the various provinces handling most of the bureaucracy. The law permits altruistic surrogacy only, which means surrogate mothers cannot be paid more than out-of-pocket expenses. Agencies are not legally permitted to professionally match surrogates with future parents for payment. Agencies are also not legally permitted to charge money for managing a surrogate’s cycle or pregnancy. In theory, the law in Canada makes every surrogacy journey an Independent journey.

That said, several “consultancies” often carefully navigate the laws to provide agency-type services. They will introduce parents to qualified surrogate mothers and arrange the surrogacy contract privately with a Canadian lawyer. The same consultancies can manage the clinic services and help move the journey along. This practice is common. Although there have been cases of such consultancies being closed by Canadian authorities for straying too far beyond the legal limits.
 


What’s the Cost of Surrogacy in Canada?

Surrogacy in Canada TestimonialCanada is actually more expensive than many couples initially think. Total cost may be about $85,000 USD 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, and enforcement of the restriction on expenses has been very loose. 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 $20,000
  • Clinical procedures about $25,000
  • Surrogate compensation about $30,000
  • Egg donor from $5000 to $15,000
  • Travel, hotel, etc. can be about $5000 to $10,000

So the total cost is typically around $85,000 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. But the care of the baby after the birth is the responsibility of the parents and may require private medical insurance or hefty out-of-pocket expenses. Rates of hospital care for a baby are about $1000/day.

Compare the this with the cost of surrogacy in Ukraine or in the United Kingdom.
 

Changes to Surrogate Compensation Regulations

In summer 2019, the Canadian government announced changes to the AHRA Act, which regulates surrogacy in Canada. The changes include (among other things) a clearer explanation of reimbursing a surrogate’s expenses. Under the new rules, it’s illegal to reimburse surrogates for any expense for which she does not have a physical receipt (other than mileage). As a result there is no financial incentive to become a surrogate, although surrogates in Canada seem to find surrogacy emotionally fulfilling.

Although surrogacy in Canada is limited to altruistic programs only, surrogate mothers have been paid based on anticipated aggregated costs and not necessarily actual out-of-pocket expenses. The changes to the AHRA make it impossible to pay surrogates for any expense for which she does not have a physical receipt. As a result there is no longer any financial incentive to become a surrogate.

The likely result of the AHRA changes is that surrogacy in Canada will remain technically legal, but finding a qualified surrogate may take significantly longer. These changes make the Canadian legal framework similar to altruistic surrogacy laws in the United Kingdom.
 


Benefits of Surrogacy in Canada

There are benefits to surrogacy in Canada. The biggest benefit is cost, which can be significantly lower than premium Agency-managed programs in the United States. Programs in the United States often range from $90,000 USD to $120,000 or more. The cost of surrogacy in Canada is about $85,000 CAD (the equivalent of about $75,000 USD). Savings can be attributed to lower Agency Fees and mandatory altruistic surrogacy, as well as the value of the Canadian dollar. General information about the costs of surrogacy are available in SENSIBLE’s Surrogacy Cost Guide.

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’s prenatal care and the delivery. This saves the cost of medical treatments during the pregnancy (or the cost of insurance premiums as in the US). However social security of Canada does not cover the child of a foreign citizens, so costs of NICU care or an incubator if the baby arrives prematurely are the responsibility of the parents. Hospital stays after the baby’s birth are at least $500/day for a regular stay. If the baby is premature and requires NICU care, expect to pay up to $5,000/day (and stays of 2 to 3 weeks are not uncommon). There are insurance policies available to cover these costs, and these should be looked into prior to the embryo transfer.
 


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. Similar to the United Kingdom, in Canada the surrogate mother holds the parental rights upon the baby’s birth. Depending on the province, for example in Ontario and British Columbia, the intended parents can simply register themselves as the legal parents (similar to Illinois laws), while in other provinces er parental rights are transferred to the Intended Mother through a court order (similar to a post-birth order in the United Sates) usually within a week or two of the delivery. However during that time, the surrogate may have an opportunity to change her mind and pursue her own parental rights, depending on the province, but thankfully thishas never happened in Canada.

If a gestational surrogate mother changed her mind she would have rights to the child at birth (since Canada does not have “pre-birth orders” like in some US states). If this happened the intended parents would have to bring an application for legal parentage and hopefully the courts would recognize the contract’s intent and DNA tests proving genetic parentage, if necessary depending on the province.

There is no legal precedent as to how local courts would handle such a claim by the surrogate. Some provinces, such as Ontario and B.C., statutorily regulate that the surrogacy agreement is evidence of the surrogate’s intent not to be a parent of the child, and in the provinces where a genetic connection is necessary, a DNA test would prove the baby’s genetic heritage. The assumption is that the application would be settled favorably for the Intended Parents — but this has not been tested.

It should be noted, the possibility of the surrogate requesting parental rights is a negligible risk.

Depending on the province, the parents may or may not be required to appear in court for the Parental judgement.

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. If this were to happen, the babies would likely be put up for adoption.
 

The Surrogacy Agreement

A Surrogacy 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 the Assisted Human Reproduction Act. The act explicitly places the following constraints on surrogacy in Canada. 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.
 


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. Some “consultancies” can make introductions to potential surrogate candidates, although this is technically illegal. Larger organizations can find a qualified surrogate in a few months, while others can find more fully evaluated surrogates in as long as a year. In general there is a shortage of surrogates in Canada, so 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.
 


Frequent Questions for Surrogacy in Canada

Is surrogacy in Canada legal?

Surrogacy in Canada is legal but restricted, with the various provinces handling most of the bureaucracy. The law permits altruistic surrogacy only, which means surrogate mothers cannot be paid more than out-of-pocket expenses. Agencies are not legally permitted to professionally match surrogates with future parents or charge money for managing a surrogate’s cycle or pregnancy. That said, several “consultancies” often carefully navigate the laws to provide agency-type services.

How much does surrogacy in Canada cost?

Surrogacy in Canada costs about $90,000 CAD. That price is much lower than surrogacy in the USA, but somewhat more expensive than legal programs in Ukraine or Colombia. Savings can be attributed to lower Agency Fees (agencies are technically illegal in Canada) and lower surrogate compensation.

How will AHRA changes impact Surrogacy laws

IN 2019 authorities announced changes to the AHRA Act, which regulates surrogacy in Canada. The changes will eliminate financial incentives for surrogate mothers, which may make it more difficult to find surrogate mothers in Canada.

How can 'Sensible' Surrogacy help?

'Sensible' offers complete surrogacy services to manage your entire surrogacy journey, or to help you manage your own. We provide agency-type services in the U.S. but for lower costs. Our focus on transparency, security and low-cost is changing the way that childless couples complete their families!

 

About the authors

  • William (Bill) Houghton
  • Author: William (Bill) Houghton

    Bill Houghton is the founder of Sensible Surrogacy, author of the Sensible Surrogacy Guide, 2x surrogacy dad, and a dedicated advocate for secure, legal and ethical Gestational Surrogacy. Read Bill's Biography
  • Sara Cohen LL.B
  • Reviewer: Sara Cohen LL.B

    Sara Cohen is a fertility law lawyer based in Toronto, with clients throughout Canada. Sara is the founder of Fertility Law Canada and a partner at D2Law LLP where her practice is exclusively devoted to fertility law.

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