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Canadian Family Law Needs To Reflect Realities Of Surrogacy

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Recent media reports indicate that surrogacy services are booming in Canada. Surrogacy is an arrangement where a woman agrees to become pregnant and give birth for another individual or couple. But it is not just Canadians who are seeking surrogacy services. Much of the demand appears to come from those in foreign countries, such as Norway, who wish to be parents.

For many childless couples and individuals, including gay men, surrogacy may be one of the only ways to have a genetically related child.

Why might foreign surrogacy be on the rise in Canada?

There are many reasons why intended parents, both foreign and domestic, may be looking to Canada for surrogacy services. Formerly popular destination countries are now restricting surrogacy services. For example, India recently banned foreign couples from accessing surrogacy services. Mexico prohibits same-sex couples from accessing surrogacy services. As a result, intended parents are turning to jurisdictions, like Canada, where access to non-residents and same-sex couples is unrestricted.

But is surrogacy really on the rise here?

The truth is, we don't actually know.

How many children are born through surrogacy in Canada each year? How many of these children are born to foreigners? To what extent are woman being paid to act as surrogates? What proportion of surrogacy arrangements are traditional surrogacies (where the woman acting as the surrogate provides the egg) as opposed to gestational surrogacies (where there is no genetic relationship between the surrogate and the resulting child)? How often do women act as surrogates?

These are important questions but Canada doesn't track all surrogacy arrangements, so we don't know the answers. We should. We need greater regulation of surrogacy in Canada to better protect and promote the interests of women who act as surrogates, intended parents and resulting children.

There are three steps that federal and provincial governments can take

First, it is imperative that the federal government define the expenses that a woman acting as a surrogate can seek reimbursement for. The Assisted Human Reproduction Act, in effect, prohibits commercial surrogacy arrangements. It does so by prohibiting payment to a woman to act as a surrogate.

The Act does, however, provide that the intended parent(s) can reimburse a woman for certain expenses related to the surrogacy. The Act provides that these expenses are to be set out in detail in regulations. Unfortunately, these regulations have not been drafted and this provision is not in force (despite being enacted in 2004). As a result, intended parents and women acting as surrogates are operating in a grey zone with respect to expenses.

Second, updated family laws are needed to reflect the use of surrogates in family building. In certain provinces, family legislation does not set out the rules governing parentage where a woman acts as a surrogate.

Parental status is important for several reasons including determining lineage and citizenship and for making health care and other decisions in respect of the child. Where the law is outdated, there is uncertainty about who the legal parent of the child is, and the intended parent(s) and surrogate must take additional legal steps to have their parental status recognized.

Finally, accurate data is essential for understanding current surrogacy practices. We currently have no data on the number of children born from traditional surrogacy arrangements, the number of times a woman acts as a surrogate, the number of babies born to foreign surrogates commissioned by Canadians nor data about the number of foreign intended parents who commission Canadian surrogates.

Limited data on gestational surrogacy performed in Canadian does exist, but access to it is difficult as all requests must be approved on a case-by-case basis.

A lack of independent data verification, reliance on voluntary reporting by individual fertility clinics who rely on patients to provide information on birth outcomes, and data omissions (e.g., age of the surrogate) make it difficult to know who acts as surrogate and to understand the health risks she may be taking.

Health Canada should work with provincial governments, fertility clinics and other stakeholders to gather relevant data regarding surrogacy practices and outcomes and to make this data (with names and identities protected) accessible and disseminated in a format understandable to the Canadian public.

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