What the surrogacy laws state, who they seemingly protect, and how they are flawed
The earliest example of surrogacy is in the Old Testament of the Bible in Genesis 16: 1-15 – “Now Sarai, Abram’s wife, had borne him no children. But she had an Egyptian slave named Hagar; so she said to Abram, ‘The Lord has kept me from having children. Go, sleep with my slave; perhaps I can build a family through her.’”
Whether you are a Bible believer, follow an alternative faith or none at all, women have endured infertility for centuries and sought out alternative solutions to start families.
Fortunately today, there are fewer “A Handmaid’s Tale” ways of pursuing surrogacy. Yet, the experience remains both beautiful and nuanced.
Throughout the centuries, there are tales of women carrying pregnancies for nobility when their wives were unsuccessful in becoming pregnant. Women were agreeing to be surrogates and allowed themselves to be artificially inseminated with the sperm of men whose wives couldn’t bear children (this is when your household turkey baster was used for more than basting your Thanksgiving turkey!).
But let’s fast-forward to today and bypass some historical facts that occurred in-between, like the first IVF baby born in 1978, which paved the way for the first gestational* surrogacy in 1985.
Many of us that have experienced the world of infertility might already be familiar with these events that revolutionized the ways couples can start families. However, you may not have ever questioned the current Canadian surrogacy laws and the challenges they present to many prospective parents and potential surrogates, despite their claim to protect parties on both sides of the surrogacy process.
Altruistic versus commercial surrogacy in Canada
While a gestational surrogate may not be biologically related to the child she carries, she is still taking on a huge, life-altering commitment that cannot be taken lightly.
Here in Canada, surrogacy laws are federally regulated under the Assisted Human Reproduction Act (AHRA) which was established in 2004. Whereas for our counterparts in the US, it is not federally regulated and legalities are state by state.1
But what does the AHRA say? Simply put, it dictates the matter of compensation or lack thereof.
In Canada, all surrogacy must be “altruistic”. Surrogates cannot be paid. However, before 2004, surrogacy in Canada was not regulated. Intended parents could pay a fee to any woman offering to be their surrogate.
So why is commercial surrogacy now banned in Canada? On the surface, it makes perfect sense for a couple struggling to start a family to pay another woman to carry their child. After all, money talks, and when people are willing to pay someone to endure nine months of pregnancy on their behalf, it seems like the easiest way to give thanks to a surrogate for her sacrifice.
In a nutshell, lawmakers behind the AHRA believe that if women are offered high payments for surrogacy services, then some might put themselves at medical risk and offer themselves up because they are in a vulnerable state financially.2 Essentially the government feels that money would corrupt a woman’s ability to make a sound decision with her own body.
The AHRA also seeks to eliminate the extra financial burden of compensating a surrogate, which restricts an expensive process even more.
While these laws appear reasonable on paper, they remain fraught with challenges and can limit the options Canadians have when it comes to building families. Let’s take a closer look at these challenges below.
Challenge #1: Altruism doesn’t make surrogacy for intended parents more accessible
Does altruism mean surrogacy is a cheap and cheerful option in Canada? No.
A gestational surrogacy is going to involve IVF. If you are fortunate enough to live in one of four provinces that provide IVF funding, then maybe you save some costs here (if you even qualify). However, the majority of Canadian couples will pay out of pocket for multiple IVF treatments. Oh, and let’s not forget those legal fees and agency fees to ensure all parties are protected.
While surrogates are not compensated for their services, they can be reimbursed by the intended parents for pregnancy-related expenses. Expenses can range from mileage to medical appointments, maternity clothes, vitamins and medications, food, health and wellness expenses like chiropractor and massage, lost wages, and bedrest expenses if needed.
The bottom line? You may not be paying a surrogate a lump sum for her service, but you’re still paying an arm and a leg for all of the above. The expenses involved do not make altruistic surrogacy accessible to all Canadians.
Decriminalizing a commercial system would not mean that altruism would be thrown out the window either. Angela Pickering from Canadian Surrogacy Community (CSC) believes that surrogates she has encountered throughout her career, truly want to help build families for couples struggling and that there is space for both commercial and altruistic paths.
Challenge #2: Altruism limits surrogacy “matchmaking” options when money isn’t involved
While Angela from CSC works with many altruistically motivated surrogates, she believes that the choice for both the surrogate and the intended parents to accept/pay money in a more transactional arrangement might better suit certain situations.
Things like cultural backgrounds or personality types can negatively impact the surrogate “matchmaking” process. Yet, more potential surrogates might overlook certain issues if they could be compensated. Ultimately, more women might be forthcoming to be surrogates if it meant they could accept payment. The math is simple – more surrogates equals more families created.
In an altruistic scenario, a potential surrogate often seeks the “perfect” couple, people they feel most compatible with, or whose infertility story touches them most. This might not mesh with the couple that doesn’t want a lovey/dovey “you’re forever part of our family” type of relationship with their surrogate and would be in favour of a more transactional approach.
The reality is, some of the best surrogate candidates who can pass the required health and psychological screenings, ultimately choose not to go ahead with the process due to the lack of compensation. As a result, many embryos stay frozen in fertility clinics across the country, never getting the opportunity to become babies.
There are couples of course that thrive under the current regulations of surrogacy in Canada when they find the perfect woman to help them. Many couples crave a meaningful connection with their surrogate and a relationship that lasts a lifetime.
This kind of relationship sounds amazing and it truly is for many. But the nuances of surrogacy mean that it cannot be a one size fits all approach and the way it is now overlooks the needs and desires of others. Angela also asks the interesting question, “Can you have both a wonderful relationship and a compensated agreement?”
Why not? People have meaningful connections or friendships all the time that extend beyond professional relationships. The ways we go about family planning for those who cannot go about it in the “old-fashioned way” should be both plentiful and inclusive. So considering we are all unique individuals with different motivations and desires, why does it have to be altruistic versus commercial?
Challenge #3: It fails to avoid the exploitation of vulnerable women
There isn’t any law stopping Canadians from seeking international surrogacy options if the process isn’t serving them at home. Ironically, this has the potential to cause more harm than good. Surrogacy abroad leads to potential complications related to citizenship or parentage. Logistical nightmares can also occur. For example, when the war in Ukraine broke out, a Canadian couple tried desperately to get their newborn twins out of war-torn Kiev).
It also creates the risk of exploiting women providing surrogacy services in places where they cannot receive proper psychological counseling, and perhaps they are being coerced into situations they are inept to consent to without the appropriate education.3 Basically, the Canadian government washes their hands of responsibility when people people go outside the country for surrogacy.
If commercial surrogacy was decriminalized in Canada, agencies like CSC would be able to offer proper protection and counseling, just as they do for those women who continue to be surrogates for altruistic purposes.
While the criminalization of commercial surrogacy seeks to prevent vulnerable women from being coerced, we cannot be naive to the fact that under-the-table surrogacy payments happen here in Canada. There are no regulations preventing couples from going “indy” for a surrogacy journey, which means they find and “hire” a woman and forgo using an agency to regulate expenses. And when under-the-table transactions happen in the absence of an agency stepping in to facilitate the process, vulnerable women in our own country will continue to be exploited.
Finally, one of the purposes of the AHRA is to ensure women don’t accept high payouts at the risk of their health. Critics argue that lawmakers are merely looking to avoid undue strain on our universal health care as opposed to helping create families. With proper regulation in a commercialized system, both psychological screening and physical exams of potential surrogates can avoid high-risk pregnancies and unforeseen or urgent medical intervention. A decent surrogacy agency should be practicing these protocols already for altruistic surrogates.
Angela believes if everyone does their job properly at all stages, medical risk is minimal even without it being commercialized. There are very specific criteria she follows when screening surrogates. This criteria comes directly from the fertility doctors she works closely with, and she would never put a woman’s health at risk if she wasn’t a viable candidate to be a surrogate. To Angela, this fear-based idea of medical risk has no basis for arguing against commercialism.
Challenge #4: Surrogacy laws remain unclear
Intended parents are expected to reimburse pregnancy-related expenses, but the law doesn’t clarify the specific expenses surrogates are allowed to claim.
With so many rules and emotions to navigate, it is unfair to add the burden of accidentally breaking the law by something trivial – like paying for a specific expense that may look more like compensation. The maximum penalty for paying a surrogate for things that aren’t pregnancy-related is a $500,000 fine and up to 10 years in prison.4
Our current laws also fail to protect intended parents from exploitation. Many scenarios have come under journalistic investigation in recent years where intended parents felt that their surrogate’s monthly expenses were not monitored properly by the hired agency and were out of control.5
This is why many Canadian surrogacy agencies wish to be licensed. If you’ve read this far, you might think that it’s bonkers that they aren’t already, but that’s why critics of the AHRA oppose its laws; there are still aspects that encourage shady behaviour, whether intentional or not.
Surrogacy agencies provide much-needed counseling and liasoning, and examples of expense discrepancies can discredit their services, which are needed when the laws are already murky. Licensing would create better accountability for those agencies wanting streamlined processes.
Interestingly enough, agencies don’t always include reimbursement management in their program. Angela says she is going into her 7th year and until the past 6 months, she has never had to manage expenses. Her program is designed to work around trust, respect, and communication so that intended parents and surrogates can always discuss what each party wants and needs during the process. She does offer receipt management as an extra fee, but truly encourages others to handle expenses on their own with her guidance on what is legal.
The bright side to Canadian surrogacy laws
While we are fortunate in Canada to be able to pursue surrogacy to some degree, progressive countries like France, Switzerland, and Germany have complete bans on the practice. Shocking, right? And get this – In Israel, it’s quite the opposite! Commercial surrogacy is legal, but altruistic surrogacy is not for religious reasons. Not only must the gestational surrogate not be related to either intended parent, but she must also be of the same religion.6
One brightside to our current legislation is that services are not restricted to married, heterosexual couples. If they were, it would be discrimination on grounds of marital status or sexual orientation. Surrogates also have access to excellent healthcare in Canada and hospital bills are covered under our universal healthcare, so these factors make Canada an attractive option for international intended parents.
One in six couples experience infertility. While not all end up requiring surrogacy on their paths to parenthood, this increasing statistic combined with an increase in same-sex couples means that there is now more than ever, a greater demand for surrogates.
We are definitely light years ahead of some nations. But while the motivation behind altruistic surrogacy sounds noble and lovely on paper, is it the best or only way we should be pursuing surrogacy?
Surrogacy is beautiful, nuanced, and complicated, even with specific laws and legislation in place. Critics of the current law say surrogacy should be considered a matter of health and not a criminal matter. It has caused confusion due to unclear rules being left open to interpretation. Supporters will argue that Canadian surrogacy laws are by far some of the most progressive, yet protective in the world.
But a ban on commercial surrogacy ultimately criminalizes women’s bodies. When we consider what is currently going on in the United States regarding the overturning of Roe vs. Wade, it puts this notion into a scary perspective. Canadians might argue, “well, that can’t happen here in Canada…” but isn’t it already to some degree?
Yes – women in Canada have the choice to be a surrogate or not, and they have access to top-notch medical care and psychological counseling. If a healthy woman who wants to escape an impoverished situation could accept money, shouldn’t she?
Can’t a woman equally want to help someone start a family, but also help her own situation if she could be compensated? The current convoluted laws make it seem that altruism is “good” and commercialism is “bad”, and that a woman legally can’t make that choice for herself. Both systems are equally complex, but with proper regulation and changes to the laws, more surrogates could thrive and more families could be created.
Angela from CSC personally lobbies against current legislation. She argues agencies like CSC can offer commercial surrogacy in safe, regulated ways so that neither party involved is taken advantage of.7
*A gestational surrogacy is when a surrogate carries a baby that is genetically unrelated to her. The egg received is either from the intended mother or an egg donor. A traditional surrogate not only carries the child but uses her own eggs, thus being biologically related to the child she is giving birth to.