Surrogacy in Canada

Surrogacy is the process whereby a woman carries a child for intended parents, with the intention of giving the child to the intended parent or intended parents upon the child's birth.  The relevant legislation and legal issues arising out of surrogacy agreements are complicated and the penalties for failing to abide by the laws regarding assisted human reproduction in Canada can be very severe so take care! As soon as you are seriously considering involving a third party in building your family, consult with a qualified fertility lawyer.

Surrogacy Law in Canada

Contrary to popular belief, surrogacy is legal in Canada.  The Assisted Human Reproduction Act prohibits the provision or acceptance of consideration to a woman for acting as a surrogate; it is illegal to pay a surrogate mother for her services.  However, it is legal to reimburse a surrogate mother for her reasonable expenses incurred as a result of the surrogacy. 

Cost of Surrogacy in Canada

The exact cost of surrogacy in Canada is difficult to pin down.  There are two reasons for this: 1. although it is illegal to pay a surrogate in Canada, intended parents may reimburse her for most reasonable expenses incurred directly as a result of the surrogacy.  Accordingly, each situation is different and intended parents should expect to reimburse a surrogate in accordance with the specific circumstances of the surrogate.  For example, if a surrogate has a complicated pregnancy and is on bed rest, intended parents can expect that more expenses are likely to be incurred than if the pregnancy is uncomplicated.  If the gestational carrier lives far from the IVF clinic, the travel expenses are typically at the expense of the intended parents.  To add some certainty for all parties, surrogacy agreements often contractually limit the amount that intended parents will legally be liable to reimburse a surrogate for her reasonable incurred expenses. 2. IVF is not a perfect science.  Sometimes a surrogate undergoes numerous transfers, which increases the overall cost of surrogacy.  All this being said, I frequently speak with potential intended parents about the possible costs involved with surrogacy in Canada and have unanimously been told by clients that surrogacy in Canada is a more cost-effective option than in the United States.

Traditional Surrogacy in Canada vs. Gestational Surrogacy in Canada

There are two types of surrogacy: traditional surrogacy where the surrogate mother is genetically related to the child she is carrying on behalf of the intended parent or intended parents, and gestational surrogacy where the gestational carrier has no genetic connection to the child she is carrying (i.e. either the intended mother's ova are used, or those of an egg donor).  Traditional surrogacy may seem like an attractive option because without the cost of IVF, the medical process may be less expensive.  However, from a legal perspective, traditional surrogacy is fraught with danger and few fertility clinics will engage in the practice.  That being said, traditional surrogacy is legal and frequently happens in Canada, although most often outside of a clinic setting.

Surrogacy Lawyer Canada

A surrogacy lawyer can assist you in navigating the murky Canadian fertility laws.  The Assisted Human Reproduction Act governs surrogacy, but also governs how intended parents and surrogate mothers find each other so it is worth contacting a fertility lawyer early on in the process.  Once the intended parents and the surrogate mother have decided that they would like to work together in building the intended parents' family, a surrogacy agreement (often erroneously referred to as a surrogacy contract) must be drafted and negotiated, setting out the legal obligations and rights of each party to the agreement.   Once a baby is born via surrogacy, further legal steps need to be taken in order for the intended parents, and not the surrogate or her husband or partner, if any, to be declared the legal parents of the child.  For more information on that process, pleas see the Legal Parentage page.

Independent Legal Advice for a Surrogacy Agreement

It is imperative that a surrogate receive independent legal advice on the surrogacy agreement prior to the embryo transfer or the insemination.  This independent legal advice ensures that all parties understand their rights and obligations under the agreement.  Reputable clinics will not perform an embryo transfer to a surrogate without ensuring that she first obtained independent legal advice.  The same law firm cannot provide legal advice to the intended parent or intended parents and the surrogate; two different law firms must be involved in the legal process.