Surrogacy is a regulated and altruistic (reimbursement for expenses is only allowed) alternative for those experiencing difficulty or requiring assistance creating a family of their own. Surrogacy is an arrangement where a woman agrees to carry a baby for others, often being the only option for an infertile or same-sex couple to have their own genetically-related child.

Canadians experiencing infertility, same-sex couples and single parents are increasingly turning to assisted human reproduction (“AHR”) options, like surrogacy. This week, Adrianna Banaszek, founder and family lawyer at Banaszek Family Law, explores emerging issues relating to surrogacy in Canada:

Legislation governing assisted human reproduction in Canada

The Assisted Human Reproduction Act (“AHRA”) is Canada’s federal legislation that governs assisted reproduction procedures like surrogacy and human cloning, to name a few. There are several regulations associated with the AHRA. It is designed to protect and promote the health, safety, dignity, and rights of Canadians who use, or are born of, AHR technology.

Health Canada is responsible for developing policy and regulations under the AHRA, and for administering and enforcing the legislation and its’ regulations. The Government of Canada (Health Canada) outlines that the AHRA achieves this purpose by “setting out prohibited activities related to assisted human reproduction that may pose significant human health and safety risks to Canadians or that are deemed to be ethically unacceptable or incompatible with Canadian values.”

Can surrogates obtain payment? New changes coming JUNE 2020.

The current laws in Canada prohibit paying a surrogate mother for the act of carrying the child. NEW regulations from Health Canada will come into effect on June 9, 2020 in the form of the Reimbursement Related to Assisted Human Reproduction Regulations (the "Regulations”) to clarify what type of “payment” or reimbursement of expenses is legal in a surrogacy arrangement.

The inclusion of a comprehensive list of reimbursable expenses is a major development as the current legislation does not specify which particular expenses may be reimbursed. By clearly defining which expenses are reimbursable to a surrogate, the Regulations will reduce fears of being criminally sanctioned for offering an illegal type of payment to a surrogate or for the surrogate accepting same. Consequently, the ability to broadly interpret what constitutes a “reasonable” expense previously allowed parties more flexibility and autonomy in making fertility arrangements.

Reimbursable expenses relating to surrogacy

The following expenditures incurred by a surrogate mother in relation to the surrogacy MAY be reimbursed under subsection 12(1) of the Act: (as outlined in section 4 of the Regulations):

• (a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

• (b) expenditures for the care of dependents or pets;

• (c) expenditures for counselling services;

• (d) expenditures for legal services and disbursements;

• (e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

• (f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;

• (g) expenditures for obtaining a written recommendation referred to in paragraph (f);

• (h) expenditures for the services of a midwife or doula (professional trained in childbirth);

• (i) expenditures for groceries, excluding non-food items;

• (j) expenditures for maternity clothes;

• (k) expenditures for telecommunications;

• (l) expenditures for prenatal exercise classes;

• (m) expenditures related to the delivery;

• (n) expenditures for health, disability, travel or life insurance coverage; and

• (o) expenditures for obtaining or confirming medical or other records.

The new Regulations take into account the various additional expenses associated with pregnancy. For example, with respect to the grocery reimbursement, Health Canada recognizes that a woman's overall health influences the health of her developing baby. The nutrient intake for pregnant women and women who are breastfeeding are generally greater than those of other women, which enables groceries to form part of the reasonable possible expenses for reimbursement.

As you can tell from the foregoing list, the Regulations will allow for pregnancy-related expenditures to be covered by the party enlisting the surrogate’s service. Health Canada is very clear in their Guidance Document that only a party who wishes to reimburse the legitimized expenses may do so, but that there is no obligation to reimburse a surrogate for the expenses they have incurred as a direct result of the pregnancy.

The perspectives on whether payment for surrogacy should be legalized vary across Canada. Some parties accept the current legislation and consider payment for surrogacy a slippery-slop which has the potential of making the process exploitative, while others believe that payment should be an option to acknowledge a woman’s right to choose how she uses her body.

Calgary fertility and surrogacy lawyer

This rapidly developing area of the law requires that your legal counsel understands the legislative and procedural changes. If you require a surrogacy agreement or independent legal advice on a fertility agreement or arrangement, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

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