The first aspect to consider when it comes to complete surrogacy in Canada is the provinces’ regulations that could affect your journey
With a rise in infertility and the increase in acceptance of non-traditional families, many straight and gay couples, as well as single men and women who want to start a family, have turned to surrogacy in Canada as their last option.
There are many people who don’t know that surrogacy is even legal in Canada. In fact, many are under the assumption that they will need to pursue a surrogacy process in another country. However, according to Canadian legislation, altruistic surrogacy is legal. But… what is altruistic surrogacy? By definition it means:
- Surrogate mothers are ineligible for payments beyond basic expenses related to surrogacy.
- Agencies are not permitted to match prospective parents with surrogates.
- Commercial services that support the surrogate or prospective parents are not allowed.
Pros and cons of surrogacy in Canada
Canadian legislation allows altruistic surrogacy only, which means surrogates can only be reimbursed for basic expenses related to the process and they have to provide proof of payment for every expense incurred.
Additionally, surrogacy agencies are not legally allowed to match intended parents and surrogates nor manage the surrogacy process and the surrogate pregnancy for a fee. Technically, the Canadian surrogacy regulation places the responsibility of these on the intended parents. That said, several surrogacy professionals usually navigate the laws to make introductions to qualified surrogates for the prospective parents and to arrange the surrogacy contract privately with their attorney. Usually, the same professionals can make referrals to a lawyer and help move the process along. Although this practice is common, intended parents should cautiously research potential agencies for a history of unlawful activity to avoid future problems.
In summary, surrogacy in Canada is a real option, but you need to be aware that it can take months or even years to find a surrogate mother and be successful. This is because, contrary to programs in countries such as the U.S., the prospective parents are the ones doing almost everything, something a hired surrogacy consultant would do in other countries.
On the other hand, there are three main benefits to surrogacy in Canada:
- The biggest advantage is cost, which can be significantly lower than programs in the U.S. The lower costs usually come from the lower surrogacy agency fees and lower surrogate compensation.
- A baby born in Canada is granted Canadian citizenship, which means new parents will have a Canadian passport for their newborn to go home with the child.
- Canada’s healthcare service is extended to the surrogate and delivery. Should complications arise in the delivery, the costs of medical treatments are addressed. But, Canada’s social security does not apply to children of foreign citizens, despite the fact that the baby is considered a Canadian national, the care of the baby after the birth is responsibility of the parents. Thus, any NICU care costs are the intended parents’ responsibility.
Is surrogacy in Canada really legal?
In Canada, the laws that govern surrogacy are implemented in different ways according to the provinces, but the Assisted Human Reproduction Act (AHRA) is federal legislation which recognizes that altruistic surrogacy contracts are possible. It also recognizes that married and co-habitational couples of any sexuality as well as single men and woman can sign a surrogacy agreement in the country (all types of family are welcomed) and sets out activities that are permitted and those that are forbidden.
While surrogacy arrangements in Canada are legal between the two parties, the law doesn’t have to fully enforce them. If the surrogate mother decides to change her mind and keep the baby, she is recognized, by law, to keep the child… regardless of a contract or not.
If intended parents wanted to sue the surrogate for custody, the courts would acknowledge the contract’s intent and ask for DNA tests to prove the genetic parentage. At this time, there has been no legal precedent on how the courts would address this issue as there has never been a gestational surrogacy arrangement disputed in a Canadian court by a gestational surrogate. The hope is that a contract between the surrogate and intended parents would be enough to show the arrangement’s intent and a DNA test proves the true heritage of the newborn.
In summary, yes! surrogacy is legal in Canada according to the AHRA but surrogacy arrangements must be 100% altruistic.
The Surrogacy Regulations: Parentage Declarations and Birth Registration
The declaration of Parentage in Canada is the process that guarantees the intended parents will be officially recognized as the parents of the child.
Each province in Canada has laws stipulating how to register a child’s birth, including when the birth mother is a surrogate. When it comes to the birth registration process, British Columbia and Ontario tend to be the most surrogacy friendly provinces contrary to Quebec where surrogacy agreements are considered invalid.
In general, the woman who gives birth is recognized as the mother. In a surrogacy process, the surrogate is recognized to be the child’s mother because she is the one who gives birth. This recognition can be refuted by applying for a Declaration of Parentage in the courts. As soon the prospective parents get the Declaration of
Parentage, they can take this to the General Registry and get a birth certificate with the intended parents’ names.
There are substantial differences among the Provinces in Canada so you should look for the help from a reputable attorney who is experienced with surrogacy regulation to make sure this process is done correctly.
Generally speaking, Canadian laws are favorable to surrogacy arrangements (except in Quebec). Here is a brief summary to get you started:
- British Columbia: Immediate Registration, you don’t need a Declaration of Parentage.
- Alberta: Declaration of Parentage, the genetic link to the child is important.
- Ontario: Statuary Declaration. The Declaration of parentage is optional.
- Quebec: It´s not a surrogacy destination, only adoption allowed.
- Manitoba, Saskatchewan, Nova Scotia and New Brunswick: surrogacy processes are more unusual in those provinces and there are significant differences in the process itself and legal requirements.
Nowadays, most surrogacy processes take place in Ontario, Alberta and British Columbia, however there are surrogacy births in other provinces.
Additionally, for non-Canadians who want to use a Canadian surrogate, besides the Province’s birth registration regulations where the child will be born, they also need to consider the parentage and citizenship laws of their home country.
Learn more about the Canadian regulation on surrogacy and third-party reproduction.
What is the cost of surrogacy in Canada?
The average cost of surrogacy in Canada may range from 60,000 to 100,000 CAD approximately.
The more affordable cost of a surrogacy journey in Canada compared to the United States is not only due to altruism, but also due to the public Canadian healthcare system that covers the medical expenses derived from pregnancy.
Below you will find a cost breakdown:
- Surrogacy agency’s fees around $10,000 CAD
- Lawyer’s fees around 20,000 CAD
- IVF procedures about 25,000 CAD
- Surrogate reimbursement about 20,000 CAD
- Egg donation process from 5,000 to 15,000 CAD
- Other costs (i.e. Travel, hotel, etc.) can be about 5000 to 10,000 CAD
However, even with this cost breakdown, it’s difficult to estimate the exact cost behind a surrogacy journey in Canada for two reasons:
1- Reimbursement of expenses
It’s illegal to pay a Canadian surrogate, although the prospective parents can pay for reasonable expenses that occurred because of the surrogacy. While every situation is different, the intended parents are expected to pay the surrogate based on the circumstances she incurred. For example:
- If the surrogate’s pregnancy is complicated and requires bed rest, the intended parents will be expected to pay more for her expenses and perhaps even for her lost wages.
- If the surrogate mother lives a great distance from the IVF clinic, the intended parents are expected to pay for the travel expenses.
Surrogacy agreements give some certainty in the “relationship” when it comes to how much the intended parents are legally liable in reimbursing the surrogate for her incurred expenses.
2- IVF isn’t perfect
It’s not uncommon for a surrogate to undergo several transfers, which raises the cost of surrogacy in Canada. Extra embryo transfers are between 3,000 – 5,000 CAD for each attempt.
Due to these reasons, prospective parents are recommended to have an additional funds available for covering unplanned casualties.
Three steps to start your surrogacy process in Canada
If you’re interested in pursuing surrogacy in Canada, there are three main things you need to keep in mind:
1- Find a reputable surrogacy lawyer
Hire a local attorney specializing in these kind of cases. An experienced attorney will handle the paperwork and legalities that relate to the surrogacy process quicker.
Below is a list of some surrogacy lawyers across Canada:
Alberta – Ellen K. Embury – Dunphy Best Blocksom LLP – www.dbblaw.com
British Columbia – Lindsay Morphy, Barrister & Solicitor – www.vancouverfertilitylaw.ca
British Columbia – Lawrence A. Kahn, Q.C. – www.kzellaw.com
Ontario – Michelle Flowerday – Flowerday Law I Fertility & Family – www.familysurrogacylawyer.com
Ontario – Sherry Levitan – www.fertilitylaw.ca
2- Look for your surrogacy soulmate
You can find intended parents, egg donor or surrogate mother through various online communities, forums or surrogacy agencies.
Here is a list of some surrogacy agencies in Canada:
3- Work with an outstanding fertility clinic
Once the surrogate mother and intended parents matched, the intended parents can choose a reliable and dependable clinic near the location of their surrogate’s home.
Below is a list of some fertility clinics throughout Canada.
Ontario – CReATe Fertility Centre – www.createivf.com
Ontario – ReproMed – The Toronto Institute for Reproductive Medicine – www.repromed.ca
British Columbia – Grace Fertility Centre –www.fertilitywithgrace.com