Who might need surrogacy?
A single person, where they need someone to cary a fetus to term
An opposite-sex couple in which the female may be unable to carry the pregnancy to term
An opposite-sex couple in which one of the spouses is transgender
A same-sex gay couple
A same-sex lesbian couple where neither is capable to carry a fetus to term
Genetic or gestational surrogacy
There are two types of surrogacy: genetic surrogacy (also known as traditional surrogacy) and gestational surrogacy.
Genetic surrogacy: Where the surrogate mother is genetically related to the child she is carrying on behalf of the intended parent, it is referred to as genetic or traditional surrogacy. Genetic surrogacy does require the use of a fertility clinic, unless in vitro fertilization is needed. Although genetic surrogacy is legal in Canada, it may be difficult to find a fertility clinic which will facilitate genetic surrogacy, because of the "legal risks" associated with carrying a child genetically related to the surrogate, among other things.
Gestational Surrogacy: Where the gestational carrier is not genetically link to the child she is carrying, it is referred to as gestational surrogacy. In gestational surrogacy, either the egg of the mother who is seeking to become a parent or the egg of a donor is harvested for fertilization in vitro. The fertilized egg of a donor is then implanted in the surrogate.
Q: What is a surrogacy?
A: Surrogacy is the process resulting from a woman agreeing to carry a child for another person (or couple), with the intention of surrendering the child at birth. There are two types of surrogacy: genetic (the surrogate is genetically related to the child) and gestational (the surrogate carries the foetus but is not genetically related to it).
Q: How does a surrogacy get arranged?
A: This is a two part question. First, is the selection of the surrogate (or gestational carrier). This can be a known person to the intended parent(s), or ***. Second, how the surrogate becomes pregnant, it is usually through a fertility clinic, using in vitro fertilization.
Q: Is surrogacy legal in Canada?
A: Surrogacy is legal in Canada. See the section entitled "Surrogacy in Canada" below for more information.
Q: I want to get paid for being a surrogate. How do I arrange this.
A: Paying, offering to pay, or advertising payment for being a surrogate is illegal in Canada.
Surrogacy in Canada
Surrogacy is legal in Canada. However, it is not legal for surrogacy to be financially compensated. The Assisted Human Reproduction Act prohibits the provision or acceptance of consideration to a woman for acting as a surrogate.In other words, it is a criminal offence to pay for, to offer to pay for, to receive payment for, or to advertise that payment will be made for surrogacy.
However, it is legal to reimburse a surrogate mother for her reasonable expenses incurred as a result of the surrogacy. Qualifying expenses have not yet been defined either by statute or case law.
Restrictions on surrogacy exist in part to prevent women from being exploited by someone in a position of authority over them. For example, the minimum age for a surrogate in Canada is 21 years.
Surrogacy contracts should not be entered with someone who has influence over the surrogate, for example an employer.
A surrogate may sometimes reside in different province than the intended parents. Each province in Canada has a different legal regime regarding surrogates and birth registrations/declarations. To avoid unexpected problems, you have to get early legal advice based upon the specific facts of your own situation.
While the federal Assisted Human Reproduction Act addresses the prohibition to financially compensate a surrogate, and the minimum age of surrogate, it is the Children's Law Reform Act, that provides the legislative basis for surrogacy agreements in Ontario.
Surrogacy in the media
“Wishing Doesn’t Make It So”, Impact Ethics. December 17, 2013. Françoise Baylis and Jocelyn Downie.
Synopsis. The director of a private surrogacy agency accused under the Assisted Human Reproduction Act (AHRA) pled guilty to purchasing human eggs from five women, paying three women to act as surrogates, and accepting payment for arranging the services of a surrogate, all of which are prohibited. The accused was fined $60,000. The authors argue that the Government of Canada must act with haste to clarify what reimbursements are permitted for surrogacy under s. 12 of the AHRA.
“Lawyers debate "Who is a parent?": Patchwork of Canadian laws creates confusion in determining parental rights for gay and lesbian parents.” Ottawa Citizen. Nathalie Stechyson, September 27, 2013.
Synopsis: Health care industry reporter writes on the challenges of married men who use surrogacy to build their family.
“Ontario fertility raid linked to U.S. 'baby-selling' scandal". National Post. Tom Blackwell. March 5, 2012.