A recent article in The Economist magazine discussed the upsurge in Britain of surrogacy arrangements, and the legal and practical difficulties that can arise. While surrogacy is legal in Britain, the article ends by suggesting that the laws should be enhanced to better regulate a phenomenon that both well-established and on the rise in that country.
By comparison the legal situation in Canada – while still not comprehensive – is considerably more clear.
As most of you likely know, a surrogacy arrangement involves one woman carrying and giving birth to a baby on behalf of another woman (usually one who is herself part of an infertile couple). The surrogate mother conceives the child through an assisted reproductive procedure using donor genes, but fully intends to surrender the child at birth to the donor or another person.
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In Canada, surrogacy is governed squarely by the federal Assisted Human Reproduction Act (the AHRA). Under that legislation surrogacy arrangements are not against the law, as long as the surrogate mother is over the age of 21 and decides to participate for altruistic reasons. Put another way: Canadian law makes it illegal for the surrogate mother to receive a monetary fee or any other compensation for serving as a surrogate, nor can she “sell” the baby. It is also illegal to even offer to pay a surrogate mother, advertise such an offer to pay, or to “broker” a surrogacy arrangement for a fee.
A person who breaks the law under the AHRA is committing a crime and at a maximum could be fined up to $500,000 or jailed for up to 10 years, or both.
With that said, the AHRA does allow a surrogate mother to receive reimbursement for her out-of-pocket expenses directly related to the pregnancy (e.g. maternity clothes, travel for medical appointments and medications). However, these must be actual expenditures normally supported with a receipt; they cannot be merely “anticipated” expenses. Nor can the mother receive payment for being a surrogate in a disguised or indirect manner, for example by having her mortgage, credit card bills, or educational tuition paid for her.
Provided it does not otherwise contravene the AHRA, a surrogacy contract is legal in most of Canada (with the exception being Quebec). However, to be valid and enforceable it must still comply with the usual provincial laws that govern the formation of any type of contract.
Given the unique nature of surrogacy arrangements, various legal and ethical issues relating to legal parentage, custody, and even citizenship / immigration issues have arisen in the decided court cases, and I will discuss some of those in an upcoming Blog.
Do you have questions about surrogacy arrangements? Contact us for a consultation.