8 March 2023
Exploring Surrogacy: Its Legality, Compensation, and Other Considerations
This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women’s Day 2023, to empower, celebrate, and encourage women in Canada.
Defining Surrogacy
A surrogate mother is a woman who carries a baby full term on behalf of someone else. In some cases, the surrogate uses her own eggs to fertilize the sperm from the male donor (the intended father), while in other cases both the egg and the sperm are inseminated artificially (reproduction through sexual intercourse does not qualify as surrogacy).
Is Surrogacy Legal in Canada?
Yes, surrogacy is legal in Canada. However, surrogates must be at least 21 years of age and are not permitted to receive any financial compensation for being a surrogate.
Are There Compensations to Surrogacy in Canada?
The Assisted Human Reproduction Act permits a surrogate in Canada to be reimbursed for reasonable expenses related to the surrogacy, including maternity clothes, medications, lost wages incurred for appointments, childcare, travel to doctors’ appointments, and groceries.
Recommended Steps in the Surrogacy Process under British Columbia’s Family Law Act (FLA)
Step 1 – the Surrogacy Contract
First, the surrogate and intended parent(s) must enter into a written agreement prior to conception (the “Contract”) agreeing that:
- the surrogate is to be the birth mother;
- the surrogate is to surrender the child at birth; and
- the intended parent(s) are to become the legal parent(s) when the child is born.
If a surrogacy Contract is not entered into prior to the conception, then the birth mother will be considered the child’s parent under the FLA.
It is recommended that the Contract be drawn up by a lawyer. The surrogate should have the opportunity to review the terms of the Contract and obtain independent legal advice should they wish.
Step 2 – After the Birth
In order for the intended parent(s) to become the child’s legal parent(s), the following must occur:
- no one withdraws from the Contract prior to conception;
- when the child is born, the surrogate gives written consent to surrender the child to the intended parent(s) (note: Contract itself is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born); and
- the intended parent(s) take the child into their care.
If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born.
Financial Considerations
Surrogacy Canada Online recommends that the intended parent(s) have a budget of $80,000 for a gestational surrogacy (where the surrogate does not have a genetic connection to the child). IVF (in vitro fertilization) treatment costs alone can range between $15,000 – $20,000.
Insurance
Provincial health care plans will cover birth-related medical expenses for Canadian surrogates including prenatal care and delivery. Most fertility treatments are considered third-party medical treatments and will not be covered by insurance or provincial health care plans.
Employment Benefits
In British Columbia, two types of benefits are relevant to surrogacy: maternity benefits and parental benefits.
For women who have contributed to Employment Insurance (if you are self-employed you may not have), EI “maternity” benefits are available if you require time off work due to pregnancy, including surrogates. “Maternity” benefits are available for up to 15 weeks for a maximum of $650 per week (depending on your level of contribution). EI “parental benefits” are not available to surrogates, who it is presumed will not be the parent after the birth, however, birth parents and adopting parents are entitled to “parental benefits” up to 35 weeks and in some cases (at lower rates) up to 61 weeks. For two-parent households, review here the combinations of leave which are available to each parent sharing the leave.
Similarly, in British Columbia, the Employment Standards Act provides protection for your job during a leave due to either being a surrogate or as a parent to take care of a child. The length of time these leaves are available is amended from time to time but currently stands at up to 17 weeks for the woman who carried and delivered the child and, separately, up to 62 weeks for parental leave. Women who gave birth and are the parent can take both the maternity and the parental leave. These leaves track, and are meant to be complementary to, the EI income replacement benefits. See here to review all the requirements for applying for these leaves.
Meet The Author
Alexandra is an Associate in the Litigation & Dispute Resolution Group at Watson Goepel LLP. She has experience in civil litigation, specifically in the areas of labour and employment law, occupational health and safety, estates litigation, general commercial litigation, and tax litigation including customs and tariffs disputes.
