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Surrogacy is strictly controlled in Canada, with limits on compensating surrogates, and correspondingly stiff penalties for any infractions. However, surrogacy experts say that despite the laws in place to ensure that surrogacy does not become a paid business, there are vast grey areas in law and policy that are problematic.

Altruistic Surrogacy in Canada

Canadian law prohibits “commercial surrogacy” (i.e. any surrogacy which sees the surrogate mother receive money for carrying a child).  Under the Assisted Human Reproduction Act (AHRA), directly paying for the services of a surrogate is punishable by a fine of up to $500,000 or 10 years in prison. This is equivalent to criminal penalties for trafficking in drugs or illegally possessing weapons. The law reflects the broader public policy goal of protecting both women and children from exploitation.

All surrogacy in Canada is altruistic surrogacy. Altruistic surrogacy is an arrangement in which the surrogate does not receive any compensation for her surrogacy services beyond compensation for medical costs and reasonable pregnancy-related expenses. Often, altruistic surrogacy arrangements are made between family members or close friends.

Breaches of the AHRA

The Toronto Star recently reported on the story of Leia Swanberg, the only Canadian woman to ever be charged under the AHRA. In February 2012, eight RCMP officers arrived at her fertility consulting firm in Ontario. Armed with a warrant, the officers seized computers, files, and expense reports. Swanberg was charged with 27 criminal charges, including paying surrogates.

Ultimately all original charges were reduced, Swanberg pled guilty to two regulatory offences, paid a $60,000 fine, and avoided a criminal record. Swanberg explains that the offences essentially involved not having the appropriate paperwork on hand that Health Canada recommends be filled out when dealing with surrogates.

Surrogacy Grey Areas

Surrogacy experts are beginning to ask questions about whether women in Canada have been turning surrogacy into an employment or business opportunity. They argue this has become a pressing public policy issue.

Despite the AHRA and the heavy focus on altruistic surrogacy in Canada, there is a vast grey area that allows money to be exchanged, without government or police enforcement. The issue has been magnified by the fact that demand is currently far eclipsing supply, with the number of parents seeking a surrogate is exponentially higher than the number of surrogates available.

This has resulted in some prospective parents believing that demonstrating additional “generosity” beyond what is strictly governed by the AHRA gives them an edge over other prospective parents. Fertility clinic operators report surrogates receiving cash to take their families to Disneyland, getting their rent payments covered, or getting jewelry, cash or gift cards.

Despite such stories, industry experts note that they’ve never heard of prospective parents or surrogates getting audited in any way, and that, to date, the only charges brought under the AHRA have been those against Swanberg.

Debates about the Law

Many surrogates and agencies are questioning whether the AHRA achieves its goal of protecting women and children. They argue that rather than protecting women, the law as it currently exists is actually hurting them. There are also concerns about the lack of general regulation and oversight.

Advocates argue for changes to the law that would allow prospective parents to pay surrogates. Many surrogacy agency owners believe that surrogates should be paid as they put their health on the line and their lives on hold for others.

Other agency owners point to the lack of regulation resulting in the fact that no two surrogacy agencies follow the same practices, offer the same services, or charge the same fees. There is also no oversight body to hear complaints about the agencies or manage the concerns of prospective parents.

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

In the meantime, if you have questions about your options for future parenthood, including adoption, contact Gelman & Associates. Our lawyers provide exceptional legal guidance and advice to parents seeking information, and 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.

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