Surrogacy has been gaining attention in the news lately as Liberal party MPP Anthony Housefather is attempting to have a bill passed that will decriminalize the payment of surrogates and egg and sperm donors. This might have you thinking, “Wait, it’s criminal to pay a surrogate or donor here in Canada?” The answer is yes, and has been for over 14 years now.
Until 2004, commercial surrogacy was legal here in Canada, meaning that surrogates could be paid any sum of money by intended parents to gestate their children. Then, in 2004, the Assisted Human Reproduction Act was passed, making it illegal to be paid to act as a surrogate or donor. It is an actual criminal offense that intended parents would be charged with, owing up to $100,000 in fines and up to 5 years in jail. Altruistic surrogacy and donation is legal, where only out of pocket expenses may be reimbursed.
While intended to protect surrogates, donors, and intended parents from being coerced or taken advantage of, this law has scarcely been enforced. The list of expenses eligible for reimbursement is vague, leaving some intended parents with the difficult decision to reimburse their surrogates for certain expenses or not, depending on how the list is interpreted. This leaves intended parents in the dark, trying to keep their surrogates expenses paid for while trying to follow the law to avoid spending the first years of their new child’s life in prison. Lawyers aren’t able to explain exactly where the lines are as far as what is expensable, so they advise intended parents to err on the side of caution. Some people are afraid to give their surrogates or donors gifts or tokens of appreciation like flowers, afraid that it will be misperceived as payment.
The new bill Mr. Housefather is proposing will decriminalize paying surrogates and donors. This isn’t to say that commercial surrogacy is the next step, however. Mr. Housefather says it could be decriminalized at the federal level and then left up to the provinces how they would like to handle the laws themselves. With decriminalization, the fines and jail sentences wouldn’t be a consequence any longer, and any disputes would be heard in civil court rather than criminal court. The bill is set to be read in May. I will be keeping my eye on this situation as it evolves!