Surrogacy in Canada

Surrogacy is legal in Canada, provided that it is an altruistic (unpaid) act. Based on the 1993 report by the Royal Commission on New Reproductive Technologies, as well as input from experts and individuals directly affected by assisted human reproduction technology, the federal government of Canada passed the Assisted Human Reproduction Act in 2004.^[1] The Act criminalizes commercial (paid) surrogacy. The validity of surrogacy contracts and the process for establishing the child's parentage is governed by provincial and territorial laws.^[2]

1 in 6 Canadians can face fertility issues,^[3] and between 2001 and 2012, 803 IVF-conceived births were recorded for gestational surrogates in Canada (statistics on traditional surrogacies - in which the surrogate mother is also the egg donor - are not available).^[4] This number of surrogacies is also connected to Canada becoming a popular site for international surrogacy, in part due to its high-quality universal health care and relatively liberal regulations. However, Canada's surrogacy laws are still subject to criticism, and many have pushed for revision of the law since the Act was passed.^[5]

The Assisted Human Reproduction Act of 2004 makes it illegal to pay a surrogate, egg donor, or sperm donor. It also criminalizes commercial "intermediaries," such as surrogacy agencies, from arranging surrogacy services or matching prospective parents and surrogates.^[1] The Act establishes a minimum age of 21 for surrogates.^[6]

While monetary or other gain is illegal, the Act allows intended parents to reimburse a surrogate for out-of-pocket expenses incurred in relation to the surrogacy. Including maternity clothes, medications, and travel.^[7] A surrogate may be reimbursed for lost wages; however, a doctor must declare in writing that bed rest is medically necessary for this reimbursement to be legal. Receipts must generally back reimbursements and cannot result in financial gain for the surrogate.^[8]

As of 2018, there has only been one conviction under the Act: a 2014 case in which an Ontario company, Canadian Fertility Consultants, was fined $60,000 for purchasing eggs and paying surrogates.^[9][10]

The federal government determines and maintains surrogacy laws, while provincial and territorial governments oversee surrogacy agreements and parental rights. Intended parents go through the parentage declaration process to be recognized as the only legal parents of the child. However, this process and the requirements that must be met for the declaration to be approved vary depending on the province/territory, resulting in some cases where the intended parents must adopt the child.^[11]

In Alberta, a court order is required for parentage declaration. If there is no genetic link between the child and at least one of the intended parents, parents will have to go through the adoption process. If only one parent has a genetic link, they will appear solely on the birth certificate, and the other parent will have to adopt the child.^[2][11]

Intended parents have two options for establishing parental rights: hey can go through the administrative process of a statutory declaration, or if necessary, a court-ordered parentage declaration. No genetic link between the intended parents and the child is required for parents to appear on the birth certificate. Up to 6 parents can be listed on the birth certificate.^[11]

While no genetic connection is required, the surrogate's name is initially listed on the birth certificate along with the intended father (if there is one). The surrogate's name will be removed or replaced when a court-ordered declaration of parentage is approved. In Manitoba, no genetic link is required from either parent, but in New Brunswick, if neither intended parent has a genetic link with the child, they will have to adopt the child.^[2]

Intended parents can apply for interim custody before the birth of the child; however, the surrogate's name will appear on the birth certificate initially. Intended parents will go through the parentage declaration process before appearing on the birth certificate. If there is no genetic link between the child and at least one of the intended parents, parents will have to go through the adoption process.^[2][11]

There are no clear laws or guidelines for intended parents and surrogates. While parentage declarations are available, adoption is believed to be the preferred or more commonly used legal process for establishing parentage in the Northwest territories.^[11]

In Nova Scotia, a court-ordered declaration of parentage is required. Surrogates, alongside intended fathers (if there is one), are named on birth certificates; however, the surrogate name will be replaced/removed once a court order is approved. If there is no genetic link between the intended parents and the child, an adoption process will be required.^[11]

In Ontario, intended parents can go through the administrative process of statutory declaration or a court-ordered declaration of parentage. However, if intended parents choose the statutory declaration process, it can only be signed by the surrogate a week after the birth. Whereas a court-ordered parentage declaration can be processed immediately after birth. Up to 4 parents can be listed on the birth certificate.^[2][11]

As of March 2021, an administrative process rather than a court-ordered process is legal for establishing parentage. However, the surrogate name will still initially appear on the birth certificate, and a court order is required for the name to be removed from the birth certificate.^[2][11]

In Quebec, birth certificates can solely list the surrogate name or the intended father's (if there is one) name. Alternatively, they can list both the surrogate's and the intended father's (if there is one) names. The other intended parent must go through the adoption process to establish parentage. If neither intended parent has a genetic link with the child, parents must go through the adoption process.^[2][11] Until it was repealed on June 6, 2023, Article 541 of the Quebec Civil Code rendered all surrogacy contracts null.^[12][13] In a 2009 case, a Quebec surrogate gave up her legal claim to her baby, having made an arrangement with a couple. The intended father was recognized as a legal parent because his sperm had been used to conceive the child, but the court denied any legal rights to the intended mother, leaving the child with no legal mother.^[14] In four subsequent cases, Quebec courts have allowed intended parents to adopt a child born via surrogate.^[15]

A court-ordered parentage declaration and a pre-existing surrogacy agreement are required. Surrogates are initially listed on the birth certificate alongside the intended parents. However, no genetic link is required to establish parental rights in Saskatchewan.^[2][11]

In Yukon and Nunavut, no clear information is available on guidelines or laws for how intended parents establish rights; however, parentage declarations are available.^[11]

Canada has become an attractive location for foreign intended parents, who may not be able to legally enter into a surrogacy agreement in their home country. In 2016 and 2017, 45 of 102 babies born to surrogates in British Columbia had intended parents outside of Canada (nation-wide statistics are not collected).^[16] While it is illegal under the AHRA for Canadians to pay a surrogate mother, Canadian surrogates may legally accept payment for surrogacy from foreigners, provided that the transaction occurs outside Canada.

Canada is one of the few countries which allows foreign surrogacy, and does not discriminate on the basis of marital status or sexual orientation. Its system of universal health care also relieves intended parents of covering the cost of pregnancy care, birth, and neonatal care.^[16]

Children born through international surrogacy with at least one intended parent who is a permanent Canadian citizen are considered Canadian citizens themselves. This parent does not have to be genetically related to the child; however, they do have to have legal documents proving parentage.^[17]

Canada's strict surrogacy laws were partly founded on feminist fears that commercial surrogacy in Canada could result in women being exploited.^[18] Despite this rationale, some debate the law and raise concerns that the law may be causing more harm and believe commercial surrogacy should be legal.^[5] While it is illegal for surrogates to profit from their own bodies financially, there have been arguments that the ambiguous language behind the law is problematic, resulting in exploitation. That is, while surrogates cannot be paid, there are surrogacy agencies that can accept payments. These agencies advertise services that help surrogates and intended parents navigate the complex laws surrounding surrogacy. There are no clear guidelines from the federal, provincial or territorial governments stating how these agencies can be monetarily compensated for their part in the surrogacy process. Therefore, some argue that this allows the agencies to function through the grey areas of law and profit from unpaid surrogates.^[5]

Another leading issue in the Canadian surrogacy law debate centres around international surrogacy. Many argue that babies born in Canada with international intended parents should not automatically have Canadian citizenship. This argument is hotly debated as it does not seem to be founded in genuine cases where Canadian surrogacy was chosen so that the child would have Canadian citizenship.^[5] These concerns expand into how international surrogacy in Canada affects Canadian healthcare, which is funded by Canadian taxpayers but is accessed for international audience.^[19] Further critics revolve around fears for Canadian surrogates who are left with the child if international intended parents back out of the surrogacy agreement. Such was the case for a surrogate in New Brunswick when international intended parents separated and decided to back out of the agreement despite the surrogate already being pregnant.^[19]

• Assisted human reproduction - Health Canada
• Prohibitions related to Surrogacy - Government of Canada