Over the past 6 months, we have been gathering information on surrogacy in Canada and have been pleasantly surprised at the real options available for international IPs. It seems that the perception among Australian, and other international, prospective IPs that Canadian surrogacy was a more difficult and lengthy process was driven by one perspective of the law in Canada. There are two differing interpretations of the Canadian surrogacy laws, each held by a collection of Canadian lawyers, agencies and clinics.
The Canadian Federal government intended to regulate the surrogacy industry and restrict it to a strict altruistic model and the law prohibits payments other than those permitted by regulations to the surrogate and prohibits agencies from matching egg donors and surrogates to IPs. However the law was the subject of a partially successful constitutional challenge by one of the Provinces on the basis that the law sought to regulate a matter of Provincial concern and not Federal concern. The effect was that the Federal Government did not proceed with issuing the anticipated regulations. There remains a legal vacuum with respect to the regulation of surrogate compensation and the surrogacy industry of clinics and agencies.
Without providing a legal analysis, and to keep it as simple as possible, the 2 interpretations are as follows:
- The first group of clinics, agencies and lawyers try to give effect to what was the intention of the Federal Government in regulating the industry and take a very conservative view of the level of compensation that can be paid to a surrogate and the role of agencies in recruiting surrogates.
- The second group of clinics, agencies and lawyers are of the opinion that a common sense test should be applied to determining what reimbursement is payable to a surrogate and that the law expressly allows for some reimbursement for lost income. This group relies on legal principles that for there to be criminal liability the relevant law must be certain and that where the regulations anticipated under the law do not exist there is clearly no legal certainty as to liability for contravening a non-existent regulation. They have a more pragmatic approach to the level of reimbursement that can be paid to a surrogate and also the type of consultancy services an agency can provide to prospective IPs and surrogates.
It should be obvious that those in the second group are more likely to be able to find a suitable surrogate because they are prepared to provide more reimbursement for the surrogate’s expenses. As a consequence the second group are interacting more frequently with international IPs in their surrogacy journeys.
The two differing interpretations are each of Canadian practitioners. Neither is our interpretation. We simply summarise here what we understand those interpretations to be.
To summarise in the simplest terms – the first group suggest it is difficult to find a surrogate in Canada and that you must conduct the search mostly on your own, the second group suggest you will have an FET within 4 months and they will help you to find a surrogate and contract with her.
We are now working with service providers from the second group to help Australians and other international IPs undertake surrogacy in Canada.
