Surrogacy in Canada: What are the laws?

CTV News Channel: Breakdown of surrogacy laws Dr. Clifford Librach of the Create Fertility Centre Medical Director explains the law surrounding surrogacy in Canada.

The case of an Australian couple accused of abandoning their son with his Thai surrogate mother after they learned he has Down syndrome is drawing attention to the spread of so-called surrogacy tourism.

Complicating the Thailand case is the fact that the Australian father is a convicted child sex offender. Speaking to an Australian media outlet on Sunday, David Farnell said the couple had been told prior to the birth that their son has Down syndrome, and that at that point they "expected the surrogacy agency to give them a refund and find a solution."

Some countries, including India, Ukraine and Thailand, that have relatively lenient regulations around commercial surrogacy are popular for parents in developed countries looking for lower-cost surrogacy options.

In Canada, while surrogacy is legal, providing compensation for the surrogate is prohibited.

To clarify the rules in Canada, CTVNews.ca has taken a look at this country’s surrogacy laws.

Do Canadian surrogate mothers get paid?

In Canada, "commercial surrogacy", which sees surrogate moms receive money for carrying a couple’s child, is illegal. It’s also illegal for would-be parents seeking a surrogate to advertise that they're willing to pay a woman for the service.

It is legal, however, to reimburse a surrogate for the expenses she incurs as a result of the pregnancy. This is known as "altruistic surrogacy."

All surrogacy contracts in Quebec, whether commercial or altruistic, are unenforceable.

Dr. Clifford Librach, medical director at Create fertility clinic in Toronto, said surrogacy arrangements in Canada are typically accompanied by legal contracts.

Librach told CTV News Channel that issues regarding the custody of the child after birth and what would happen if an abnormality or health issue is noticed before birth would be addressed in the contract.

"It's unlikely in Canada, where we have very good testing prenatally, that (a severe abnormality) would have only been picked up so late in the pregnancy," Librach said in an interview Monday.

What kind of screening do couples looking for a surrogate undergo?

Librach said he's never encountered a case in which a convicted sex offender has pursued a surrogacy birth. But he noted that it is something that could happen in Canada.

"We can’t stop anyone from having a child naturally. Even if we have a fertility patient come to us, these sorts of things we may not know," he said. "We would ask about psychological or psychiatric issues -- if we knew about that, certainly it would be significant factor."

Librach said all of the Create clinics have an ethics committee and clients go through an ethical evaluation, as well as legal and psycho-social assessments.

What expenses can surrogate moms charge for?

Surrogates are reimbursed for their out-of-pocket expenses during pregnancy, which could include pre-natal vitamins, medication, childcare, maternity clothes, and travel costs.

A surrogate mom could get reimbursed for the loss of work wages if she’s required to be on bed rest for the health of the embryo or fetus.

Paying a surrogate mother's mortgage, credit card bills, or school tuition is considered illegal, however.

Those found guilty of breaking the law surrounding surrogacy in Canada could face a sentence of 10 years in jail, and a fine of up to $500,000.

How much should a couple have saved for a surrogacy pregnancy in Canada?

Those seeking a gestational surrogacy, in which an embryo from the intended parents is implanted into a surrogate mom through in-vitro fertilization (IVF), the cost of IVF alone can range from $10,000 to more than $20,000, depending on the clinic and number of treatments required. This does not include the cost of medication.

Expenses before and during pregnancy can range from $11,000 to more than $28,000 for expenses incurred travelling to an IVF clinic, childcare, airfare/accommodations, lost wages, medications, etc.

Legal expenses could cost up to $10,000 and additional costs such as medical care after birth, life insurance policies, DNA testing, medical and psychological evaluations also add to the cost.

According to the surrogacy support website Surrogacy In Canada, the average cost for a gestational surrogacy typically runs between $32,000 to more than $76,000.

How do you find a surrogate in Canada?

Canadian law makes it illegal for a third-party, such as a fertility clinic, to accept money for connecting an infertile individual or couple to a surrogate mom, or to advertise for such services.

Because surrogacy agents became illegal in 2004, under the Assisted Human Reproduction Act, couples must find a surrogate mother on their own. Most take their search online with classifieds posted on major surrogacy websites.

Canadians can use American surrogacy agencies, which provide prospective parents with profiles of screened and approved surrogates. These agencies charge between $4,000 and $18,000.

How many Canadians use surrogates yearly?

Librach estimates there are between 300 and 500 surrogacy arrangements each year. He said surrogacy in Canada is "active", but it doesn't compare to the number of surrogate pregnancy that take place every year in the United States.

Librach said some Canadians do travel overseas to arrange for surrogacy pregnancies – known as reproductive tourism.

"The reason is usually because the costs are much less, and unfortunately the regulations are nowhere near as strict as they are in Canada,” he said. “There may be many issues that (the parents) may encounter that would put the situation at risk."