Surrogacy: is it legal in Canada?

(May 7, 2011)    One option for infertile couples is surrogacy. Just what are the legalities involved?

As a gestational surrogate, the woman who carries your child provides the womb for nurturing an embryo. (The embryo is produced through in vitro fertilization using the egg and sperm of the parents-to-be, or from donors.)

We distinguish two kinds of surrogacy: commercial and altruistic.
• In commercial surrogacy, the surrogate is paid for her services: she gets fees and expenses.
• Non-commercial or altruistic arrangements are most likely to happen between family members or close friends: one woman offers to carry a baby for another, with no thought of a contract or paying a fee.

Some U.S. states allow commercial surrogacy. Canada, Australia, U.K. and other countries do not. Surrogacy is legal in Canada, but only when no fee is paid to the surrogate mother. She can be paid only for out-of-pocket expenses.

It's a federal law: the Assisted Human Reproduction Act (AHRA). The section dealing with surrogacy, Section 6, came into force on Apr. 22, 2004 and prohibits commercial arrangements. In Canada compensating the surrogate mother in any way is illegal, and that includes money, gifts, free trips or whatever.

Basically, AHRA forbids three transactions:
• No-one may pay a woman to become a surrogate mother.
• No third party may take payment for arranging the services of a surrogate mother, or for advertising the services.
• No-one may pay a third party to arrange for surrogate services or to advertise those services. So, not only can you not pay a surrogate, you can't advertise for one, or pay a clinic to find one—you're on your own.

For the actual wording of the prohibitions in Section 6, see the text of the law.

Get a lawyer ... and a surrogacy contract

Having another woman bear a child for you is legally complex. Do you need a lawyer to help you arrange a surrogacy? Yes, says Sally Rhoads of Surrogacy in Canada Online in Stratford, Ont. She recommends hiring a lawyer who specializes in third-party reproduction, to make sure you are not breaking the laws and regulations.

She further recommends a surrogacy agreement, in which the surrogate mother agrees to produce a child for you. "Before your surrogate mother begins any tests or medical procedures be sure to meet with a lawyer specializing in reproductive law and have a surrogacy agreement (or contract) in place." She says the contract is important because it defines the expectations of the surrogate mother and the intended parents (the couple wishing to have a child), and helps them face the various issues that may come up.

One issue is naming the legal mother once the baby is born. In most countries the woman who gives birth is simply presumed to be the child's legal mother. In surrogacy there is a different legal mother, the one specified in the contract. Since at birth the baby will be registered as the surrogate's child (whether or not she is genetically related), the surrogate mother agrees to relinquish custody of the child immediately after birth. You apply to the court to have the intended mother declared the legal mother. The actual process depends on the province the baby is born in. For example, the surrogate mother agrees to end her parental rights, and the intended parents do a step-parent adoption.

The lawyer may discuss the rare event of a custody battle and explain that the contract can't decide the custody of a child—family law does that.

The American Surrogacy Center provides a sample gestational surrogacy contract for use in the United States. It includes compensation provisions which would be illegal in Canada. More sample contracts are at All About Surrogacy.

Information on Surrogacy has a surrogacy agreement checklist aimed at American readers in a commercial surrogacy arrangement.

Other issues to discuss with your lawyer are:
• Your rights and obligations under the Assisted Human Reproduction Act.
• What expenses of the surrogate mother are legitimate and may be reimbursed.
• What provisions to put into the contract.
Some lawyers are listed below at Surrogacy Information.

Sally Rhoads also mentions that some fertility clinics in Canada will provide services to help you proceed with a surrogacy. Contact a clinic to find out what their services are.

Is a surrogacy contract enforceable?

Can surrogacy arrangements be enforced? The problem is that the legality of a surrogacy contract depends on the jurisdiction, and even then there is uncertainty.

In Québec at least, it's clear-cut: a surrogacy contract is unenforceable. The Civil Code of Québec, 1991, says "any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null" (c. 64, a. 541).

As for the rest of Canada, Parliament's Legislative Summary of AHRA says that Section 6 (the list of surrogacy prohibitions) does not affect the validity of a surrogacy agreement [see subsection 6(5)]. The validity, including enforceability, is a matter of provincial law. But Section 6 still applies, so a contract may be valid yet contravene federal law if it doesn't respect the prohibition on commercial surrogacy.

To date no surrogacy contract has been tested in court. In her article "The legal and bioethical questions regarding surrogacy contracts", Kathryn Pilkington of Hull & Hull in Toronto wondered if contract law should apply, or family law. She concluded, "No surrogacy contract has been challenged in a Canadian court, but it may only be a matter of time and it will be interesting to see how a court grapples with this complex issue."


For links to the text and legislative summary of AHRA, latest legislative news and an FAQ, see AHRA Information.

Surrogacy Information

Canadian Surrogacy Options, Joanne Wright, surrogate mother in Ontario
Gestational Surrogacy, Regional Fertility Program, Calgary
Lisa Feldstein, surrogacy lawyer, Markham ON
Nancy Lam, surrogacy lawyer, Toronto
Natasha Del Bianco, adoption lawyer, Surrey BC; step-parent adoptions for people using third-party reproduction.
Nicolle Kopping-Pavars, surrogacy lawyer, Markham ON
Reproductive technologies: surrogacy, and egg and sperm donation, 2001 research report by Library of Parliament
Sara R. Cohen, fertility lawyer, Toronto
Sherry Levitan, surrogacy lawyer, Toronto
Surrogacy in Canada Online, Sally Rhoads, surrogate mother in Stratford ON UNITED STATES
All About Surrogacy
American Surrogacy Center
Center for Surrogate Parenting, surrogacy agency in Encino CA and Annapolis MD
Information on Surrogacy, Rayven Perkins, surrogate mother in Texas
Surrogate Mothers Online


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