Surrogacy: what the Canadian law says

(May 7, 2011)    Ever since the Assisted Human Reproduction Act (AHRA) came into force on Apr. 22, 2004, Canadians have been prohibited from arranging a commercial surrogacy. Here is what the law says.

First, a definition. AHRA defines "surrogate mother" as:

A female person who - with the intention of surrendering the child at birth to a donor or another person - carries an embryo or foetus that was conceived by means of an assisted reproduction procedure and derived from the genes of a donor or donors.

The prohibitions in Section 6 of AHRA

The drafters of AHRA followed the U.K. model, not the U.S. one, in prohibiting "commercial trade in the reproductive capabilities of women and men". The AHRA prohibitions are listed at "Human cloning and other prohibitions".

Banned are such assisted human reproduction activities as paying donors for eggs and sperm. Section 6 is quite clear on banning payments to a surrogate mother for her services. The Section 6 prohibitions are:
No payment to a surrogate mother

No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
Intermediaries may not take payment
No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
No payment to intermediaries
No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.
No surrogate under 21
No person shall counsel or induce a female person to become a surrogate mother, or perform any medical procedure to assist a female person to become a surrogate mother, knowing or having reason to believe that the female person is under 21 years of age.
Validity of a surrogacy agreement unaffected - Subsection 6(5)
This section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.

What AHRA allows

As a result of this law, in Canada you cannot buy eggs or sperm, or pay a surrogate mother. You are, however, allowed to reimburse donors and surrogates the amount of their legitimate expenses.

We won't know what is legitimate until Health Canada publishes the final AHRA regulations. And Health Canada says it won't publish them until the Supreme Court gives its opinion on the constitutionality of parts of AHRA. It was the government of Québec which challenged the constitutionality of sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act, in 2004.

On Dec. 22, 2010 the Supreme Court ruled on the challenge: sections 10-11, 13-18, 40(2), 40(3), 40(3.1), 40(4), 40(5), and section 44(2) and 44(3) of the Act were indeed unconstitutional. The power to license fertility doctors and clinics, for example, belongs to the provinces, not the federal government.

The surrogacy section of AHRA, Section 6, is unaffected by the ruling. However, we still await the publication of the final regulations.

The Québec Reference, as it is called, details the legislative history and summarizes the content of AHRA.

AHRA Information

Text of Assisted Human Reproduction Act (Dept. of Justice)
AHRA-prohibited activities (Health Canada)
Latest legislative news about Assisted Human Reproduction (Health Canada)
Legislative summary of AHRA (LEGISinfo)
Frequently Asked Questions about AHRA (Health Canada)


What is gestational surrogacy?
Surrogacy: is it legal in Canada?
Surrogacy: what the Canadian law says
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