In 1989, the Government of Canada asked the Royal Commission on New Reproductive Technologies to consider the latest medical developments in infertility treatment (e.g., in vitro fertilization). Based on the ethical, social and economic issues linked to infertility treatment, policies and safeguards were suggested and developed. In addition to considering the recommendations in the Commission's final reportFootnote 1 the Government worked with health professionals, researchers, ethicists and individuals using or thinking about using assisted human reproduction to build their families to develop its approach to infertility treatment. The result was the Assisted Human Reproduction Act (AHR Act), which became law in March 2004.
The law respects Canadians' values, and sets out broad principles to guide how Health Canada applies and enforces the Act and its regulations. Health Canada also encourages health professionals, researchers and other interested groups to follow the principles (stated below) while carrying out AHR based activities.
Under section 6 of the AHR Act, no person shall:
This means that the following activities are illegal:
Under the AHR Act, "surrogate mother" means a woman who - with the intention of surrendering the child at birth to a donor or another person- carries an embryo or a fetus, conceived through an assisted reproduction procedure, and derived from the genes of a donor or donors.
Also, the AHR Act states that these prohibitions (section 6):
This means that a surrogacy contract must follow the laws of the province where the contract is signed.
The prohibitions are in keeping with the guiding principles in the AHR Act. Exploiting the reproductive capabilities of children, women and men for commercial gain is strictly forbidden for health and ethical reasons.
What types of costs can be repaid under the AHR Act?
A surrogate mother can be repaid for out-of-pocket costs directly related to her pregnancy and usually a receipt is needed. Examples include costs for:
A surrogate mother may also be repaid for loss of work wages if a doctor certifies, in writing, that bed rest is necessary for her health and/or the health of the embryo or fetus.
In Canada, it is a crime to pay (in cash, goods, property or services), offer to pay or advertise to pay a woman to be a surrogate mother. The AHR Act does not:
Although paying a surrogate mother is a crime, a surrogate mother may be repaid for out-of-pocket costs directly related to her pregnancy (i.e., maternity clothes, medications).
This means that a surrogate mother can only be repaid for out-of-pocket costs if they are directly related to the surrogacy and usually when a receipt is attached. For instance, a surrogate mother may be repaid for loss of work wages if a doctor certifies, in writing, that bed rest is necessary for her health and/or the health of the embryo or fetus. However, costs related to the surrogacy also depend on each surrogate mother's situation.
What are indirect and disguised payments?
Indirect and disguised payments are illegal under the AHR Act. They could include paying a surrogate mother's:
Under the AHR Act, it is illegal in Canada:
These prohibitions include:
This means it is illegal under the AHR Act to pay third parties to hire a surrogate mother. Examples of third parties include fertility clinics that match infertile couples with surrogate mothers. Indirect and disguised payments are also illegal. These could include: paying a surrogate mother's mortgage, credit card bills, or school tuition.
To help reduce the chances that young women are taken advantage of, it is a crime in Canada to:
Surrogacy arrangements made between the surrogate mother and the intended parents must respect the AHR Act and provincial and territorial laws. Depending on where the surrogate mother and intended parents live, domestic and foreign laws may also apply and could affect the surrogacy arrangement. Therefore, legal advice should be sought before entering into a surrogacy arrangement to deal with issues that may arise, such as legal parentage, adoption and citizenship issues.
Any person in Canada who breaks the law under the AHR Act is committing a crime. If found guilty, the person could be fined up to $500,000 or jailed for up to ten years, or both.
As with any criminal act, if a person is actively helping or advising another person who has committed an offense under the AHR Act, the person giving the help could be considered an accomplice to the crime. This judgment would be based on the particular facts of the situation and the level of knowledge of the person giving the help.
If you need more information on the application of the Act or its regulations, please contact Health Canada in one of the following ways:
Address Locator 0900C2
Telephone: (613) 957-2991
Toll Free: 1-866-225-0709
Facsimile: (613) 941-5366
Teletypewriter: 1-800-465-7735 (Service Canada)
Final Reporting of the Royal Commission on New Reproductive Technologies, Proceed With Care, vol.1 and 2,1993.