We’ve previously blogged about surrogacy laws in Canada, including the concept of “altruistic surrogacy” (an arrangement in which the surrogate does not receive any financial compensation for her surrogacy services beyond any compensation for reasonable pregnancy-related expenses and medical costs).

Currently, commercial surrogacy (i.e. any surrogacy where a surrogate mother receives payment for her surrogacy services) is prohibited in Canada and has significant consequences under the Assisted Human Reproduction Act (AHRA). As such, surrogacy arrangements in Canada always involve altruistic surrogacy.

Recently, Anthony Housefather, a Liberal MP and Chair of the House of Commons justice committee, has been seeking a change to the current status quo and is pushing for a new Bill that would allow surrogate mothers (and sperm donors) to be paid for their services.

The Assisted Human Reproduction Act (AHRA)

The AHRA, which came into force in 2004,  seeks to limit the exploitation of the “reproductive capabilities of children, women, and men for commercial gain” for health and ethical reasons. The AHRA outlines several prohibitions related to surrogacy, including:

• Paying or offering to pay a woman to be a surrogate mother;
• Advertising that payment will be offered to a woman to be a surrogate mother;
• Accepting payment (or anything else given or promised) in exchange for arranging the services of a surrogate mother;
• Offering to pay for the arrangement of such services;
• Advising or helping a woman under 21 years of age become a surrogate mother.

Under the AHRA, paying for a surrogate’s services is punishable by a fine of up to $500,000 or 10 years in prison.

Costs that are permitted to be covered include travel for medical appointments, medication, maternity clothing and lost work wages (in some cases).

Proposed Changes

Anthony Housefather, held a press conference in late March along with a number of doctors and fertility lawyers, to announce that he is planning to table a private member’s bill in May that would outline substantial legal changes to surrogacy and sperm donation in Canada. Housefather plans to consult with constitutional lawyers and other experts.

He argues that Canada’s current laws are “out of step” with modern families that include same-sex couples, single mothers, and women choosing to have children later in life. According to Housefather, the current ban on compensation for surrogates and sperm donors creates a “grey zone” that may dissuade potential surrogates who are anxious about breaking the law.

Paid surrogacy was previously addressed in 2014 when former Conservative MP, Dean Del Mastro, introduced a private members bill that would amend the AHRA and allow for payment for surrogacy. While Del Mastro called his Bill a “pro-family” move, it was ultimately unsuccessful.

Opponents of paid surrogacy argue that babies and women should not be treated as commodities. Critics have compared paid surrogacy arrangements to prostitution and physical exploitation.

Housefather acknowledges such arguments but counters with his own position that adult women are competent to make their own decisions and that it is “paternalistic” to ban surrogacy based on these grounds.He is hopeful that the government will endorse his bill, although he has not yet received a commitment on same.

Supporters of the Proposed Bill

Housefather is supported by the Liberal women’s caucus, whose chair (Anita Vandenbeld) told CBC News that caucus members “unanimously support” his plan. Vandenbeld argues that it is “vital” to “update the laws to ensure all Canadians have the right to use modern reproductive technologies”. Vandenbeld also believes that we should not continue to criminalize women’s bodies and that assisted human reproduction is one of the last areas in Canadian law where this criminalization occurs.

Opponents of the Proposed Bill

Alana Cattapan, an expert in reproductive ethics and biotechnology at the University of Saskatchewan, told CBC News that, for surrogates, receiving money is a secondary concern. Cattapan notes that what many surrogate mothers want is improved patient care and clearer regulations as to what can be compensated or reimbursed.  She believes that there are other ways to address surrogacy that would encourage women to volunteer to be a surrogate.

Cattapan notes that the number of reported surrogates in Canada has grown from 285 in 2010 to approximately 700 in 2017. She echoes concerns of other opponents about the commodification of the human body as well as the potential risk of exploitation and coercion.

Initial Response from Parliament

Opposition parties have indicated that they want to carefully consider the details of any proposed Bill before they take a position on the issues.

Conservative justice critic Rob Nicholson told CBC News:

When the Liberals table legislation in this area, we will carefully review any proposals put forward to make sure it is in the best interests of Canadians.

Conservative Leader Andrew Scheer has said that he looks forward to hearing all sides of the debate, noting:

There could be a lot of unintended consequences, there could be some good merits to the idea…so we’re going to hold off on judgment.

The NDP’s health critic, Don Davies, also told CBC News that his party will not take a position until it has studied the issue. While the NDP has historically opposed any move to commercialize the sale of organs or tissues, Davies recognizes that fertility matters are “profoundly important” for many Canadians.

We will continue to follow ongoing debates around surrogacy as they unfold, and will provide updates as soon they become available.

In the meantime, if you have questions about your options for future parenthood, including adoption, contact the exceptional family lawyers at Gelman & Associates. We stay ahead of the curve in changing family and related laws, including laws around reproductive technology and surrogacy. We can help facilitate the expansion of your family. With six offices conveniently located throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.