Legislation in Gestation: Canada re-examining surrogacy laws

  • November 28, 2018
  • Stephen Threndyle

In 2004, the Assisted Human Reproduction Act was introduced to formalize and modernize government policy with respect to family-building and reproductive technology. Since that time, fertility clinics offering assistive (also known as “third person”) reproductive technologies have become common. 

Fourteen years later, the federal government is seeking input from interested parties to update this key piece of legislation. Last month, Minister of Health Ginette Petitpas announced that "The Government of Canada is taking necessary steps to help Canadians who use reproductive technologies to do so safely, and with peace of mind. New proposed regulations will help protect the health and safety of women and children across Canada. They will also offer couples dealing with infertility, single people, same-sex couples and other members of the LGBTQ2 community flexibility in building their families."

The number of surrogacies has almost doubled in the past eight years; from 285 in 2010 to over 700 currently.

Looking for new rules 

Health Canada is examining three sets of new regulations under the Assisted Human Reproduction Act:

  1. to establish a health and safety framework for third-party donor sperm and ova;
  2. to identify the categories of expenditures that may be reimbursed to donors and surrogates;
  3. and to establish procedures regarding administration and enforcement of the Act.  

There will also be minor updates to the existing consent regulations, including the introduction of a record retention requirement.

Legal agreements covering a wide range of issues between donors, surrogates and the new parents are required before any fertility treatment can be undertaken. Kelly Jordan is a Toronto-based family lawyer and mediator with a specialty in reproductive law. She drafts surrogacy agreements, ovum/sperm donor agreements and obtains official declarations of parentage. 

She says changes to the Act are long overdue. “I think it’s good that interested individuals and businesses like fertility clinics have been given some time to respond. There have been some grey areas, especially when it comes to allowable expenses, where it’s been very hard to advise clients,” she says. “Expenses can be paid to surrogates, but the expenses remain undefined by the regulations.” 

She points out that there’s a serious imbalance between couples seeking fertility treatments and the number of donors. Jordan says, “The pool of potential surrogates needs to grow, and that’s not going to happen unless we codify aspects of the Act to make the program more attractive.”  

Historically, guidance around acceptable expenses has been both vague and cumbersome to implement; requiring an inordinate amount of time and inconvenience on the part of the surrogate to get approvals for expenses from doctors. Rumours of informal financial payouts from parents to surrogates have abounded for years.

Covering expenses at the heart of the push for change

Health Canada is now proposing a wide-ranging number of expenses to be covered including surrogate accommodation, obtaining medical records, costs related to changing health or life and disability insurance, associated drugs or devices, maternity clothes, counselling and legal services and care of dependents. 

Jordan says that dietary expenses should be addressed, too. “We do see in some cases that the prospective parents want the surrogate to follow a specialized diet which might have added costs.”

Perhaps the biggest issue from a financial perspective is the loss of work-related income due to pregnancy. Jordan would like to see that loss of work-related income period extended beyond the period of surrogacy to include the months after. “Currently, federal law provides for payment to the surrogate to cover lost wages up until the birth date, but nothing after that,” she says  

It’s an ironic situation, given that Canadian mothers enjoy the support that paid maternity leave provides through their Employment Insurance contributions. Jordan explains, “A surrogate should not be out of pocket for any money both during and after the pregnancy.”

Other factors in play

Another major change Jordan would like to see concerns how violations in surrogacy law are currently treated. “Offenders are tried in criminal court, which seems very unfair given the generous and idealistic gesture that surrogacy requires. It seems to me that the criminal justice system is not the right way to deal with health issues,” she says. Paying a surrogate can result in a 10-year jail term and hefty fines of up to $500,000, though Health Canada has only ever successfully prosecuted a single case.

Other minor changes include facilitating a more direct way for Canadians who donate eggs or ova, and sperm. The government is also proposing lifting a lifetime ban on anonymous sperm donations from men who have sex with other men. 

The purpose of these consultations will clarify the existing legislation, but a potentially controversial alternative proposal has received recent media attention. In May, Liberal MP Andrew Housefather introduced a private member’s bill in the House of Commons that would legalize payment to third-party surrogates.

Housefather, who chairs of the House of Commons justice committee, currently has the support of the Liberal Party’s women’s caucus. The legislation, Bill C-404, has yet to pass first reading in the House of Commons. There are strong arguments for and against legalizing the payment of surrogates: currently 40 American states allow it but in Canada, the surrogate’s role has been viewed as a highly altruistic service.

As it stands, many observers feel that Health Canada is not going far enough when it comes to discussing payment for surrogacy, which has the potential to be a political minefield. After the October announcement, University of Toronto bioethics expert Kerry Bowman told the CBC that "We could have women trapped in impoverished situations, where they’re really doing it not because they want to put their body on the line, but because they really well and truly need the money.” He notes that both India and Thailand have made commercial surrogacy services illegal, although advertisements promoting Mexican fertility clinics proliferate on the internet.

Both the CBA and OBA have urged all levels of government to address and change shortcomings in current assisted reproduction technology legislation, especially where it affects family composition—most notably single persons, LGBT couples, and individuals with fertility issues.

Consultations on the proposed new regulations are to close Jan. 10, 2019.