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Prohibitions related to Surrogacy

Background

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.

Principles

  • In the use of AHR technologies, children's health and well-being must come first;
  • Using appropriate measures will help protect the health, safety, dignity and rights of people affected by the use of AHR technologies;
  • Because women, not men, are more significantly affected by AHR technologies, their health must be protected;
  • Free and informed consent must always be given before these technologies can be used;
  • People who use AHR technologies must not be discriminated against;
  • Commercial trade and abuse of the reproductive capabilities of children, women and men is, for health and ethical reasons, a crime;
  • Preservation and protection of human individuality and diversity must be upheld.

Prohibitions related to surrogacy

Under section 6 of the AHR Act, no person shall:

  • Pay, offer to pay or advertise that they will pay a woman to be a surrogate mother;
  • Accept consideration (anything given or promised in exchange for something, not just money) for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services;
  • Pay, offer to pay or advertise to pay another person to arrange for the services of a surrogate mother;
  • Advise or persuade a woman to become a surrogate mother, or do any medical procedure to help a woman become a surrogate mother, knowing or having reason to believe that the woman is under 21 years of age.

This means that the following activities are illegal:

  • Paying a surrogate mother for her services;
  • Paying or offering to pay another person, or placing an advertisement to arrange the services of a surrogate mother;
  • Advising or doing any medical procedures to help a woman become a surrogate mother when the person knows or should know that the woman is under 21 years of age.

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):

  • Do not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.

This means that a surrogacy contract must follow the laws of the province where the contract is signed.

Reason for these prohibitions

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.

Payment to surrogate mothers

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:

  • maternity clothes
  • travel for medical appointments, and
  • medications.

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:

  • Prohibit surrogacy itself, as long as a surrogate mother in Canada makes this decision for altruistic reasons (i.e., without financial or other gain);
  • Criminalize a woman who agrees to be or becomes a surrogate mother. It is paying, offering to pay or advertising that consideration will be paid to a woman for surrogacy that is illegal.

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).

  • Repayment of a particular expense must not involve financial or other gain to the surrogate mother and normally occurs after receipts for costs are provided to the person making the repayment;
  • Payment of "anticipated expenses" or an "unexplained allowance" would be seen as violating the prohibition in the AHR Act;
  • Whether or not a particular cost is directly related to the surrogacy depends on the circumstance(s) of each surrogacy arrangement.

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.

Arranging for services of a surrogate mother

What are indirect and disguised payments?

Indirect and disguised payments are illegal under the AHR Act. They could include paying a surrogate mother's:

  • mortgage
  • credit card bills or
  • school tuition.

Under the AHR Act, it is illegal in Canada:

  • To pay, offer to pay or advertise the payment to a third party to arrange the services of a surrogate mother. This would include paying a surrogacy company that matches infertile couples with surrogate mothers.
  • To accept payment for arranging the services of a surrogate mother. Offering to make a surrogacy arrangement and advertising this kind of arrangement is also illegal.

These prohibitions include:

  • The exchange of goods or services or a disguised form of payment providing financial or other gain to a third party for arranging the services of a surrogate mother.

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.

Minimum age to be a surrogate mother

To help reduce the chances that young women are taken advantage of, it is a crime in Canada to:

  • Advise or persuade in any way a woman to become a surrogate mother, when the person knows or should know that the woman is under 21 years of age and,
  • Perform a medical procedure (e.g., assisted insemination, implantation of an in vitro embryo) to help a woman to become a surrogate mother, when the person knows or should know that the woman is under 21 years of age.

Surrogacy Agreement

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.

Compliance

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:

By Mail:

Health Canada
Address Locator 0900C2
Ottawa, Ontario
K1A 0K9

Email: Info@hc-sc.gc.ca
Telephone: (613) 957-2991
Toll Free: 1-866-225-0709
Facsimile: (613) 941-5366
Teletypewriter: 1-800-465-7735 (Service Canada)

Footnotes

Footnote 1

Final Reporting of the Royal Commission on New Reproductive Technologies, Proceed With Care, vol.1 and 2,1993.

Return to footnote 1 referrer