In May 2017 uOttawa law Profs Angela Cameron and Vanessa Gruben along with their colleague Alana Cattapan of Dalhousie University will host a two-day workshop on the law and policy of surrogacy in Canada featuring national and international experts. Several uOttawa law students will participate in this event, and we will post their reactions to the workshop here.
Baby Mama Drama: What Canada can learn from California about Commercialized Surrogacy
Canadian surrogacy laws are confusing at best and incomplete at worst. What is clear is that altruistic surrogacy is legal but commercialized surrogacy isn’t. Under section 12 (s. 12) of the Assisted Human Reproduction Act 2004, a surrogate mother can be reimbursed for out of pocket expenses, but cannot be paid to carry a baby for someone else. However, in the 12 years since the act was passed, Health Canada, the agency in charge of implementing the act, has yet to provide the regulations that define out-of-pocket expenses. The result is a legal grey area for intended parents, surrogate mothers, and third parties as to what costs can be legally reimbursed. The penalty for breaching s.12 can be as high as a 5-year imprisonment or a $250,000 fine. In the absence of clarity regarding the law, the surrogacy community has developed a set of ad hoc standards over what costs are acceptable for reimbursement. Medical and clothing expenses are generally thought of as reimbursable, while lost wages veer too close to compensation. But even with these ad hoc standards in practices, parties remain vulnerable to prosecution. In 2013, Leia Picard, Director of Canadian Fertility Consulting, admitted to paying between $22,000-$26,000 to three women to be surrogate mothers and was fined $60,000. In the agreed statement of facts of her case was the following sentence: “Health Canada policy permits reimbursement to donors and surrogates of expenses and disbursements related to donation or surrogacy.” However, some scholars disagree with this assertion, citing the Supreme Court’s ruling on the Assisted Human Reproduction Act, which states any sort of reimbursement cannot take place until Health Canada enacts regulations.
There’s a second issue with surrogacy laws in Canada. Surrogacy agreements (or contracts) cannot be enforced in courts. This has profound implications for all parties involved in the surrogacy process. Without the safety net of legal enforcement, parties are left vulnerable to breaches. For a surrogate mother, if the intended parents decide not to reimburse her for the costs they once promised to pay for, there is no legal recourse she can seek. Alternatively, if the intended parents change their mind about having the baby, no mechanism compels them to take parental responsibility. A child’s “legal mother” is the woman who gave birth to her, regardless of whether or not her egg was used to conceive the child. The surrogate mother is forced to assume responsibility. The reverse of that situation can also occur. If a surrogate mother decides that she wants to keep a baby she carried to term, the intended parents cannot ask a court to compel her into specific performance. Under the current framework, or lack thereof, surrogacy arrangements rely completely on the good faith and honesty of the parties involved and the hope that no laws are broken in the process.
To reform the system, Canada should look to the U.S. state of California, one of the few places in the western hemisphere that has legalized commercial surrogacy. In California, only gestational carrier surrogacy – where a woman provides her womb and carries a child, biologically unrelated to her, to full-term – can be contracted for. Under state law, a surrogate mother is not recognized as having parental rights since she is not biologically related to the baby. The courts therefore hold consideration valid in gestational surrogacy contracts because the benefit to the surrogate is compensation “for her services in gestating the fetus and undergoing labor, rather than giving up ‘parental’ rights to the child.” This model not only protects both parties’ interests but also provides a better framework for what costs can and cannot be covered in a surrogacy agreement. Furthermore, under the Home Care Services Consumer Protection Act 2013, the legal parents must be established prior to the child’s birth in a parentage action delivered to a county court. Brought to Canada, this kind of law would eliminate the issues around surrogacy that currently exist. The California act also requires the intended parents and the surrogate be represented by separate council, limiting the possibility of exploitation that is inherently present in a surrogacy agreement. As a result, California enjoys a clear and regulated surrogacy industry that provides children for intended parents and upwards of $100,000 for surrogate mothers. It’s time for Canada to follow suit and provide a well-defined system that protects, rather than ignores, consenting parties looking to exchange services.
 Jocelyn Downie & Françoise Baylis, “Transnational Trade in Human Eggs: Law, Policy, and (In) Action in Canada” (2013) 40:1 J L Medicine & Ethics 224 at 228 [Baylis. “Transactional Trade”]
 Françoise Baylis, Jocelyn Downie & Dave Snow, “Fake it Till You Make it: Policymaking and Assisted Human Reproduction in Canada” (2014) 36:1 J Obstetrics & Gynecology Can 510 at 511.
 Susan G Drummond, “Fruitful Diversity: Revisiting the Enforceability of Gestational Carriage Contracts” (2013) Osgoode Hall Law School of York University Working Paper No 25/2013.
 Jennifer Jackson “California Egg Toss: The High Costs of Avoiding Unenforceable Surrogacy Contracts” (2005) 15:2 J High Technology L 230 at 243.
 Richard Vaughan, “California Surrogacy Law Takes Effect Jan. 1” International Fertility Law Group (26 Nov 2012), online: <https://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/>.