Surrogacy in Canada | Law | Process | Cost | Fertility Clinics

Your Comprehensive Guide on Surrogacy in Canada

At first glance, surrogacy in Canada can seem overwhelming, with nuanced legislation and regulations and multiple steps to follow. However, in greater detail, surrogacy in this destination is legal, and the whole process follows an ethical and altruistic model from the beginning until the end.

Though there are many diverse stereotypes of the difficulty of entering the surrogacy agreement in Canada, in reality, it is possible, and the process of IVF and gestational surrogacy in private clinics is similar to the fertility care received at British or American fertility centers. Moreover, Canada is one of the few destinations in the world where international intended parents from diverse backgrounds, regardless of gender, relationship status, or sexual orientation, have access to surrogacy, which in most Canadian provinces is legally recognized and makes the prospective parents their child’s legal parents from birth.

Canadian federal law allows fertility clinics to initiate and manage the medical aspects of surrogacy. However, it is essential to understand the financial limitations imposed by legislation. While surrogacy agencies themselves are legal and the services they provide to prospective parents are legal too, paying them solely to connect intended parents with a surrogate or to introduce an intending couple or single parent to a surrogate mother is a crime.

The law permits reimbursing surrogates and egg donors for reasonable expenses incurred during the process, but direct payments for their services are prohibited.

Canadian IVF clinics cannot recruit egg donors. Still, the intended parents seeking donated oocytes or sperm may find a suitable donor with the help of some Canadian surrogacy providers with in–house egg/sperm donation services. International egg donor banks or agencies with traveling donors are also possibilities, but these fall outside Canadian legal jurisdiction.

Considering surrogacy in Canada? This article will guide you through Canadian surrogacy laws, exploring aspects like eligibility, costs, and the steps involved. We will also explore the legalities surrounding egg and sperm donation, reimbursements, and the role of fertility clinics and surrogacy agencies.

Surrogacy Law in Canada

Before March 2004, surrogacy in Canada was unregulated and thus operated in a legal grey area. The Canadian Medical Association recommended choosing a surrogate with prior birthing experience to ensure informed consent. Intended parents could either utilize a service to find a commercial surrogate or have a family member or friend act as an altruistic surrogate.

In March 2004, the Assisted Human Reproduction Act (AHR act) was granted royal assent and introduced the law, providing Canada with a national framework to regulate surrogacy. This Act applies across the country, except in cases where specific sections are deemed equivalent to existing provincial legislation by a joint agreement between the federal health minister and a particular province. Quebec’s situation regarding the Act’s jurisdiction is currently under review by the Quebec Court of Appeal.

This Act prohibits any payment or offers of payment to surrogates, people arranging surrogacy, or those advertising surrogacy services. It is also illegal to involve a woman who is under 21 in becoming a surrogate. Additionally, compensating a surrogate for pregnancy–related expenses now requires a special license. Specific regulations outlining these reimbursements, such as lost wages and incidentals, are still being developed.

The Assisted Human Reproduction Act is silent on the enforceability of surrogacy agreements. This means Canadian courts haven’t yet decided who gets custody in a dispute between a surrogate and intended parents. Quebec law specifically declares these agreements invalid.

The lack of clear legal precedent creates uncertainty. If a surrogate refuses to relinquish the baby or the intended parents reject a child with a disability, the outcome remains unclear until a Canadian court case sets a precedent or relevant provincial laws are established.

Accessibility

Canadian surrogacy is open to a diverse range of intended parents. This includes single individuals, regardless of gender, as well as heterosexual and same–sex couples (both married and unmarried). All qualifying individuals have equal access to gestational surrogacy.

Surrogacy Agreements & Reimbursements in Canada

Surrogacy agreements in Canada must be altruistic. While intended parents cannot pay a surrogate a fee for her services, they can reimburse her for reasonable expenses incurred during the surrogacy process. Depending on the surrogate’s unique circumstances, she might be reimbursed up to $3,600 monthly. The total reimbursement amount for surrogates in Canada ranges from $16,000 to $36,000 (this includes pre–pregnancy, pregnancy and postpartum expenses related to the surrogacy like pregnancy tests, medical care, prenatal and pregnancy vitamins, medications, travel expenses, lost wages, insurance premiums, childcare, maternity clothes, legal fees, bedrest, pregnancy supplies, and breast milking supplies).

Legal Parentage: Birth Registration and Certificates

One of the significant advantages of surrogacy in Canada is that the intended parents become the legal parents of the child from birth. This eliminates the need for adoption proceedings.

Birth Registration Process

Each province in Canada has its own laws regarding birth registration, particularly in situations involving gestational surrogacy. Generally, a court order will be issued within two business days of the birth, declaring the intended parents as the child’s legal parents. This order facilitates the birth certificate process, which typically takes about 10 business days.

Birth Certificates

In most provinces, the birth certificate will list the intended parents as the legal parents, not the gestational carrier. Ontario and British Columbia are considered the most streamlined provinces for birth registration in surrogacy cases.

Eligibility Requirements for Intended Parents

To be eligible for surrogacy in Canada, intended parents must meet specific criteria, including having a clean criminal record, demonstrating financial stability to raise the child, and adhering to a healthy lifestyle. Additionally, medical and psychological evaluations ensure suitability for parenthood, and following recommended medical protocols is essential throughout the process. Vanity surrogacy (without a medical reason) is not permitted.

Those who meet these criteria may choose surrogacy for a variety of reasons, such as:

Loss of uterus or complications like cancer or fibroids.
Use of medications that prevent pregnancy.
Other gynecological issues such as endometriosis or PCOS.
Recurrent pregnancy loss or unexplained infertility.
Age Factors: There may be age limitations depending on the province.
Relationship Status: Single parents and couples of all sexual orientations (LGBTQ+) are welcome.
Genetic Considerations: Concerns about passing on hereditary diseases.
HIV+ Risk Factors: Special considerations may apply.

Remember, this list is not exhaustive. It is always best to consult a professional for the latest information and discuss your situation.

Surrogate Mother Qualifications in Canada

Canadian agencies pre–screen surrogate mothers that join their programs, which means they must meet the general acceptance criteria of the IVF clinic to be qualified as a potential surrogate.

Each applicant wishing to become a surrogate mother must complete four steps before becoming a gestational surrogate. These steps involve a surrogate application, an interview with a case manager, including surrogate qualifications, an initial assessment (medical screening and testing), and profile creation.

Basic Requirements for a Surrogate Mother in Canada:

Be a Canadian citizen or permanent resident.
Be between 21 and 49 (some programs may have a lower maximum age limit).
Have a Body Mass Index (BMI) of 35 or below (some clinics may allow up to 40 with no metabolic disorders).
Be a non–smoker and free from illicit drug use or alcohol dependence.
Be financially stable with proof of income.
Have a clean criminal record.
Be in good physical and mental health, with no chronic medical conditions or history of mental health disorders.

Medical History:

Be a mother herself, ideally with no history of serious pregnancy complications (exceptions might be made in some cases).
Have a healthy pregnancy history, preferably with at least one prior successful birth (exceptions are sometimes possible). Women who have had over five C–section births or more are not eligible.
Not currently taking medications deemed unsafe for pregnancy, including medication for anxiety or depression.
No history of serious pregnancy, delivery, or postpartum complications (some exceptions can be made).
No history of premature birth (births before 34 weeks gestation — unless last birth was full term, free from complications, and the baby was born without abnormalities).

Commitment and Expectations:

Be willing to undergo psychological and medical evaluations, provide medical history, and participate in background checks.
Understand and be comfortable with the surrogacy process, including repeated bloodwork, IVF medications, including oral and subcutaneous/intramuscular injections of hormones, medical procedures including non–invasive, such as ultrasound scans, embryo transfer, and invasive ones such as sonohysterograms, hysterosalpingograms, endometrial biopsies, prenatal genetic diagnostic testing, amniocentesis, etc.
Be able to travel to fertility clinics and lawyers to attend the consults, appointments, screenings, ultrasound scans, pregnancy tests, medical procedures, negotiations of surrogacy contract terms and conditions, and so on.
Not planning on leaving the country after the 20th week of pregnancy.
Be fully committed to fulfilling the surrogacy agreement and comfortable relinquishing the child at birth.
Be able to take time away from the employer and family for surrogacy (appointments, bedrest, birth, and postpartum care).

This list of requirements provides a general overview, and specific requirements may vary between surrogacy programs and IVF clinics. It is always best to consult directly with a program or clinic to get the latest, most accurate, and most inclusive information.

Canadian Legislation on Egg Donation, Sperm Donation & Embryo Donation

Egg donation, sperm donation, and donation of unused embryos are legal in Canada, providing a safe path for intended couples and single parents to build families. However, to prevent the commercialization of reproduction, financial compensation of donors is prohibited and illegal in Canada, meaning that egg donors and sperm donors cannot be paid for their eggs and sperm. Intended couples/parents can legally reimburse donors for expenses incurred during the donation process. This reimbursement covers costs associated with medical procedures, medications, and travel related to the donation.

To ensure safety, all donors undergo a comprehensive multistep assessment to identify any potential risk factors for infectious and genetic disease transmission, including testing, assessing the quality of the reproductive material, quarantining, post–quarantining additional testing and storing the cryopreserved samples.

There are two types of fresh egg donation: a known (designated) egg donor or an anonymous egg donor through an egg donor agency. Depending on the case, fresh or vitrified oocytes can be used to complete the cycle.

Similar to egg donation, sperm donation can involve fresh or frozen sperm. Donors can be known, anonymous, or ID–releasable (for sperm imported from the United States and European countries).

Donations of embryos are usually anonymous; however, in some cases, couples who underwent IVF can donate embryos to a known intended parent they designate.

Sex Selection of Preimplantation Embryo

Preimplantation genetic testing (PGT) can identify an embryo’s sex. However, in Canada, selecting an embryo solely based on sex is illegal unless there is a medical reason to prevent sex–linked (gender–specific) genetic disorders or diseases.

Why the Restriction?

The Assisted Human Reproduction Act of Canada prohibits non–medical sex selection to prevent potential social issues and ensure ethical practices in assisted reproduction.

Transporting Frozen Embryos to Canada

While international shipping of frozen embryos to Canada is legal, specific import requirements can vary. Due to the delicate nature of frozen embryos, their transport requires specialized expertise and strict protocols.

Canadian surrogacy agencies and fertility clinics have established procedures for handling and transporting frozen embryos, ensuring their safety and viability.

The Surrogacy Process in Canada

The surrogacy process in Canada is well–regulated to ensure the safety and well–being of all parties involved. Here is a simplified overview:

Matching & Screening: Intended parents undergo initial consultations and may connect with a surrogate through an agency or directly. Medical and psychological evaluations are mandatory for both the intended parents and the surrogate. Legal agreements outlining rights and responsibilities are drafted.

Medical Procedures: If using in vitro fertilization (IVF), the intended parents’ or donors’ eggs and sperm are used to create embryos. In gestational surrogacy, the embryo is then transferred to the surrogate’s uterus for pregnancy.

Prenatal Care and Pregnancy: The surrogate receives regular medical care throughout the pregnancy, with intended parents often involved.

Delivery and Parenthood: After birth, legal processes establish parentage for the intended parents. They welcome their child while the surrogate receives post–partum care and support.

Important Note: Surrogacy in Canada is altruistic, meaning financial compensation for surrogacy (beyond expense reimbursement) is prohibited.

Gestational Surrogacy Programs in Canada

Most Canadian programs are crafted for gestational surrogacy, where the surrogate mother doesn’t use her oocytes to create the embryos, thus has no genetic link with a fetus.

Currently, clinics offer five surrogacy programs using:

Mother’s egg fertilized with father’s sperm: for cases where the intended mother can produce healthy oocytes but cannot carry a pregnancy for medical reasons.
Donor’s egg fertilized with father’s sperm: for cases where there is a concern with providing prospective mother’s own egg, such as with absence of ovaries, diminished ovarian reserve, compromised egg quality, perimenopause, premature ovarian insufficiency, or with risk of a genetically transmitted disorder.
Mother’s egg and donor sperm: for cases when the intended father’s sperm quality was questioned or it is not possible to provide a sperm sample due to high sperm DNA fragmentation, absence of viable sperm, post–surgery/treatment issues, or with risk of a genetically transmitted disorder.
Donor egg fertilized with donor sperm: for cases when neither prospective mother nor father can provide their reproductive cells to create an embryo.
Using frozen embryos: for cases when vitrified embryos are available, and the intended parent(s) would like to use them instead of initiating a new IVF cycle with a fresh transfer.

Cost of Surrogacy in Canada

For many Canadians and international intended parents, surrogacy costs can vary depending on their specific needs. Here is a general breakdown:

Basic Gestational Surrogacy: Clinics and agencies recommend a budget of $60,000 if you already have frozen embryos (vitrified for later use). If you need a fresh IVF cycle, expect $79,000.
Egg Donation Surrogacy: This option can cost more, ranging from $100,000 to $139,000, especially if you choose additional services like a guaranteed live birth program or using a traveling premium egg donor.

Additional Considerations: Budget an extra $19,000 minimum (potentially up to $39,000+) for unforeseen expenses. This could include:

Additional IVF procedures (assisted hatching, genetic testing, and vitrification of embryos left after IVF, etc.).
Unexpected situations (premature birth requiring NICU stay, C–section delivery, post–surgery medical care for the surrogate).
Surrogate’s lost wages, bedrest, postpartum care, and medications.
Multiple births.

Detailed Cost Breakdown:

The following list provides a more detailed breakdown of potential surrogacy costs in Canada (ranges are provided):

IVF Cycle/Frozen Embryo Transfer Cycle (This is subject to clinic fees, number of cycles, number of transfers, genetic screening, etc. The low end is for those who already have vitrified embryos, and the high end is for those who need to create IVF embryos.): $10,000–$20,000.
Medical Assessment of the Intended Parents and Surrogate: $1,000–$1,900+.
Psychological Assessment: $500–$1,000.
Surrogate Pre–Pregnancy Expenses (traveling to an IVF clinic, airfare, accommodation, lost wages, medications, mileage, childcare, food, etc.): $1,900–$3,900+
Surrogate Reimbursement (lost wages, traveling to a fertility clinic, airfare, accommodation, vitamins, medications, appointments, mileage, childcare, food, maternity clothes, pregnancy supplies, breastmilk): $19,000–$36,000.
Legal Fees: $6,000–$10,000.
Life Insurance Policy: $369–$4,900.
Declaration of Parentage (not required in all Canadian provinces such as BC, NS, ON): $4,000–$6,000.
Newborn Medical Insurance (recommended for non–Canadian residents): $0–$16,000.
Consultant/Agency Fee (optional): $0–$20,000.
DNA paternity test: $0–$600.

Total Average Cost: $58,769–$120,369+ Canadian dollars.

Important Note for the Prospective Parents:

These are very rough estimates, and the actual cost can vary depending on specific circumstances.

It is important to consult with a surrogacy clinic or agency for a personalized cost breakdown.

Surrogacy Agencies & Fertility Clinics in Canada

Canada has an excellent healthcare system with numerous IVF clinics and a few dedicated surrogacy agencies.

Canadian IVF clinics offer a wide range of services for men, women, and LGBTQIA+ individuals struggling with infertility. These include In Vitro Fertilization (IVF), Intrauterine Insemination (IUI), fertility preservation techniques (freezing eggs, sperm, or embryos), preimplantation genetic testing (PGT), fertility surgery, egg donation, and gestational surrogacy. The fertility specialists of Canadian IVF clinics are focused on providing the best fertility care experience for anyone seeking help.

Staffed by experienced consultants, Canadian surrogacy agencies connect intended parents with gestational surrogates, aiming to fulfill their dreams of parenthood through ethical third–party reproduction. These agencies provide guidance and support throughout the surrogacy journey.

For a comprehensive understanding of the surrogacy process, including the steps involved, cost breakdowns, and other relevant details, we recommend consulting directly with fertility clinics and surrogacy agencies in Canada:

Building Your Family Through Canadian Surrogacy

Considering surrogacy to welcome a baby into your life? Canada offers a unique, welcoming, and secure environment for intended parents from all backgrounds. Unlike some countries, Canadian surrogacy prioritizes ethical practices and transparency. The legal framework ensures you become the legal parents of your child from birth, and this security extends to foreign intended parents who enjoy equal access to surrogacy arrangements and supporting medical and legal services.

An Ethical and Transparent Approach

Canada’s surrogacy laws are built on ethical principles. The Assisted Human Reproduction Act allows for “altruistic surrogacy,” where reimbursements cover a surrogate’s pregnancy–related expenses but not payments beyond that. This stands in contrast to other countries where commercial surrogacy with a base pay for the surrogate is permitted.

Next Steps

By choosing Canada for your surrogacy journey, you are choosing a legal, ethical, and transparent process. This guide has provided a foundation, but remember, it is always best to consult with a professional for the latest information and personalized guidance.