A note from us concerning the law...

Canadian Fertility Consultants is committed to working within the legal framework in Canada. We have worked with Health Canada extensively in order to ensure that all of our services are in full compliance with The Assisted Human Reproduction Act. The Assisted Human Reproduction Act came into effect in Canada in 2004 and regulates surrogacy in Canada.

Canadian Fertility Consultants works closely with a team of highly qualified lawyers who focus exclusively on this highly complex area of law. All of our contracts and family building plans are reviewed by our legal team to ensure full compliance with the law.

Below we have provided information on the Act and the application of the Act in Canada.

The law and surrogacy

Differing ethical and social opinions have led to legal frameworks that vary between jurisdictions. In Israel, commercial surrogacy is legal, yet familial and altruistic surrogacy are banned because of religious reasons related to incest and adultery.

In the United States, surrogacy is permitted in several states with different amounts of weight given to surrogacy contracts; however, a large number of states have banned all forms of surrogacy.

The Australian Capital Territory and the United Kingdom both permit altruistic, but not commercial, surrogacy. Indeed, in the United Kingdom volunteer organizations will help commissioner(s) who cannot find a surrogate mother.

In Canada, before March 2004 surrogacy was unregulated. The Canadian Medical Association recommended that a potential surrogate be chosen who had previously given birth so that she would be better able to give informed consent. Patients could choose to pay a service to find a commercial surrogate, or a family member or friend could choose to be an altruistic surrogate.

The Assisted Human Reproduction Act was granted royal assent in March 2004, giving Canada a legal framework to manage surrogate pregnancy. The act has jurisdiction across Canada. However, certain sections of the act may not apply in a particular province if both the federal minister of health and the provincial government agree that the provincial legislation is equivalent to those sections. The act's jurisdiction in Quebec is a question currently before the Quebec Court of Appeal.

This act makes it a criminal offense to pay or offer to pay a woman to act as a surrogate; to pay or offer to pay a person to arrange for the services of a surrogate; to advertise payment for surrogacy or the arrangement of surrogacy; or to assist or counsel any person under 21 years of age to become a surrogate.

In addition, reimbursing a surrogate for her expenditures during gestation became a controlled act and now requires a licence and compliance with regulations that are still pending. For example, these expenditures could include wages lost if a physician certifies that working threatens the surrogate's health or the health of the embryo or fetus.

The Assisted Human Reproduction Act does not address whether surrogacy agreements are valid, and Canadian case law has yet to address the issues of a custody dispute between a surrogate mother and commissioner(s). The Quebec Civil Code explicitly states that surrogacy agreements are null and have no legal standing.

Jurisdictions in other Commonwealth nations and in the United States have ruled in various ways on such conflicts. In general, judges have chosen to ignore surrogacy agreements for public policy reasons and have ruled in the best interests of the child.

Ethicist also agree in general that the child's best interests trump any other considerations.Canadian judges may or may not choose to be guided by previous rulings or by dominant ethical opinion. Until there has been a Canadian case or relevant provincial legislation is passed, there is no guarantee of outcome if the surrogate mother refuses to part with the child after birth or if one or both commissioners refuse to accept a child who is born with a disability.

Useful Legal Links

Canadian Government

The Human Reproduction Act (Full Text HTML)

The Human Reproduction Act (Full Text PDF)

Assisted Human Reproduction (Section 8 Consent) Regulations (SOR/2007-137)

Health Canada (Reproduction News)

Legal Opinions

Surrogate pregnancy: a guide for Canadian prenatal health care providers

Canada: The Assisted Human Reproduction Act