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Published On: Thu, Oct 29th, 2015

Surrogacy Laws in Canada: Are Changes Finally on the Way?

The subject of surrogacy is an emotive one and aside from the deeply personal aspects of trying to create a family in this way, the laws in Canada are trying to evolve in order to find the right balance of hope and protection.

The subject of payment

Back in 2004, the federal government passed the Assisted Human Reproduction Act (AHRA), which effectively made it illegal to make a payment in return for eggs, sperm or pregnancy.

The intended effect of this Act was to avoid the somewhat worrying and perhaps even unethical practice of specialist agencies offering to provide babies that have all the right genetic attributes required and are free of imperfections.

We all know that life is not perfect and that applies to the process of conceiving and giving birth, which is likely one of the primary reasons why the federal government of Canada decided to try and impose some level of legal protection from this moral maze.

The fact that this law was introduced also led to an understandable shortage of surrogate mothers to match up with what are referred to as Intended Parents (IP’s).

Should you be considered a criminal for considering fertility?

The major issue that surrounds the AHRA is the fact that until now, the regulation of fertility treatments in Canada remains within the sphere of criminal law rather than health laws.

A recent Supreme Court directive suggested that assisted human reproduction is actually a burgeoning field of medical practice and research that is perceived to bring benefits to many Canadians.

This has led to the thinking that the financial resources allocated to criminalising parents who flout the current laws and take part in surrogacy or gamete donations would be better spent supporting provincial regulation.

Regulating aspects of surrogacy like donor registries and modernising parenting laws would for some observers, be a better use of resources than trying to criminalise a sperm donor who is paid for their donation.

Slow progress

There is no question that the surrogacy laws are in a certain state of flux at the present time and a public consultation process that was completed in September 2015, is testament to the fact that there is recognition within government that the laws need to be modernised and more reflective of the current line of thinking.

Quebec is an example of how the laws are slowly but surely moving towards official recognition of contracts drawn up between surrogate mothers and couples wanting to conceive.

Driven underground

Another compelling reason why the current laws would seem to need modernising and updating is the fact that as it stands, paid surrogacy is presently being driven underground.

Despite the serious consequences of a fine up to $500,000 and the prospect of spending ten years in jail, these serious penalties have not managed to deter infertile couples looking for a solution and choosing paid surrogacy as their way of starting the family they want.

The current AHRA does permit a surrogate who is carrying a fetus for others to be reimbursed for certain expenses related to their pregnancy, but cannot receive any payment for carrying the child.

It would therefore seem to be a reasonable argument that by updating the laws and bringing surrogacy more into the mainstream of health services, the underground practices would simply cease at this point and allow a greater level of control and regulation as a result.

Human embryo, 8 cells on day 3 photo: ekem, Courtesy: RWJMS IVF Program via wikimedia commons

Human embryo, 8 cells on day 3 photo: ekem, Courtesy: RWJMS IVF Program via wikimedia commons

Uncertainty

The current laws definitely need further clarification as there is an element of vagueness regarding the current legislation which makes many Canadians involved in the process, very nervous of the possible consequences.

There is uncertainty amongst those involved as to what constitutes acceptable expenses and therefore no one is really that sure which expenses will be considered as legitimate and what costs being covered could result in a court appearance.

It is this uncertainty and the need to design laws that are more in line with current social realities that is pushing the prospect of surrogacy contracts being recognised, ever close to a legal reality.

As it stands, surrogacy is legal in Canada and you are allowed to reimburse a surrogate mother for costs they incur during the pregnancy, but paying any woman an outright sum of money to carry your child is illegal.

Modern times and technologies call for modern laws that reflect the options open to would-be parents and there is plenty of recent evidence that discussions could eventually lead to a change in the Canadian surrogacy laws.

Guest Author :

Lorraine’s passion for surrogacy began back in 2005 when a close friend struggled with infertility. Lorraine shares with us, “it was always so black and white when you were young. You met someone, fell in love, got married and had babies. It was the natural order of life”. It was not until Lorraine researched becoming a surrogate for the first time in 2005 that she realized that there were many shades of grey in life. Lorraine knew this may not be what we were taught growing up, and surrogacy or adoption was probably not your first choice in having your child, but she can tell you from personal experience that surrogacy can be a wonderful journey when you do it For the Love of It! Facing this task without the guidance and support of an experienced fertility consultant can be an overwhelming prospect as she learned quickly. It then born AFC to make sure everyone felt the support and care that is needed during what can be an emotional journey. Along the way Lorraine made great industry connections and working partnerships with professionals worldwide to ensure that she can help to develop the fertility plan that best suits your needs. Having worked in the Canadian fertility sector since 2009, Lorraines previous experience as a small business owner and educational background with a business certificate and a LPN, Licensed Practical Nurse has been an asset throughout.

About the Author

- Outside contributors to the Dispatch are always welcome to offer their unique voices, contradictory opinions or presentation of information not included on the site.

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