Rules in the works for surrogacy and donor expenses

Last month, the federal government announced  it’s bringing in regulations setting out what expenses surrogate mothers (and  individuals who donate eggs or sperm) can be reimbursed for.

This is big news.  Since the Assisted Human Reproduction Act came on the scene over 10 years ago Canadians using surrogacy to build their families have struggled to figure out what were legally acceptable expenses.

At first blush, it sounds simple—identifying expenses  seems  a relatively straight-forward and practical issue compared to the many life-altering questions intended parents and surrogates have to think through.  But due to a major gap in our federal law, no one has been entirely sure what properly qualifies as an acceptable expense.  And getting it wrong is potentially a criminal offense.

Under the Act, it is illegal to pay for surrogacy services or for someone to arrange surrogacy services.  If convicted, an offender can face up to 10 years in prison.  Reimbursing a surrogate for appropriate expenses, however, appears to be legally acceptable.

I say “appears to be” because while the Act says surrogates may be reimbursed for expenses as set out in the regulations, that particular section of the Act is not in force.  And the regulations do not exist.

This has left intended parents and surrogates, and the professionals who advise them, no choice but to muddle through, using their best judgment and hoping they are not crossing any unwritten lines.

So yes, the fact the feds plan to tackle the acceptable expenses issue is big news.  No doubt there will be controversy, and room for improvement—if the regulations are too restrictive, it could have an unfortunate chilling effect on the number of women willing to act as surrogates.   But at least there will be more clarity.

The government is seeking input on the proposed changes until  November 29th.  You can read more in the Canada Gazette: