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What is surrogacy?

Surrogacy is a process by which a third-party (the “surrogate”) carries a child for another individual or couple, referred to as the “intended parents.” The intended parents are the ones who will become the legal parents of the child.

Is it legal to pay a surrogate?

Paying a surrogate in Canada is considered a criminal offense under the Assisted Human Reproduction Act ("AHRA"), a federal legal statute. According to the AHRA, “6 (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.”

Therefore, payment for surrogacy is prohibited, and anyone who contravenes any provisions of the AHRA is liable for a fine or imprisonment.

However, a surrogate can be reimbursed for expenses the surrogate incurred as a result of the surrogacy. Currently, the federal government has established the guiding principles for what expenses may be reimbursed, and these are codified under the Reimbursement Related to Assisted Human Reproduction Regulations. At this time, the Quebec government has not published their regulations regarding reimbursement of such expenses, so those currently engaging in surrogacy are subject to the federal regulations mentioned hereinabove.

Gestational vs. traditional surrogacy

Gestational surrogacy is the process in which a surrogate carries a child for which the surrogate does not have any genetic relationship. The sperm and ovum (egg) used to develop the embryo that is implanted into the surrogate’s uterus are not the surrogate’s genetic material. The embryo can be composed of genetic material from one or both of the intended parents, from a donor, or from materials retrieved from a sperm/ova bank.

Traditional surrogacy is the process in which a surrogate uses her own ovum to develop a fertilized embryo. The surrogate would then have a genetic connection to the child born.

In Canada, traditional surrogacy is used, but generally not in a clinic setting (meaning using artisanal at-home insemination). Traditional surrogacy raises many difficult questions and could create conflict, most importantly related to filiation, which is why gestational surrogacy is recommended.

Please contact Carolyn Booth and Charlotte Oger-Chambonnet for your questions related to fertility law.