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01/04/2019 10:59 EST | Updated 01/04/2019 12:33 EST

Kim Kardashian Can Pay For Surrogacy Under U.S. Law, But Canadian Rules Differ

In Canada, paying a surrogate might land you a 10-year jail sentence.

By now, it's probably common knowledge to anyone who uses the internet that Kim Kardashian and Kanye West are expecting their fourth child. A surrogate is pregnant with the couple's baby boy, who will be born this spring, according to Us Magazine.

The couple already have three kids: five-year-old North, three-year-old Saint, and baby Chicago, 11 months.

Kardashian carried the first two babies, but she suffered life-threatening complications. During her first pregnancy she had pre-eclampsia, a high blood-pressure condition that can be fatal for both the mother and the baby. And both pregnancies also involved placenta accreta, where part of the placenta stays attached to the uterine wall after childbirth, instead of detaching like it's supposed to. Placenta accreta can cause severe blood loss after the child is delivered, which can sometimes be fatal for the mother.

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But Kimye wanted to continue their family so they used a surrogate for their third child, according to Us. In August, Us reported that they had one embryo left, a boy, and that the couple planned to have it implanted in a surrogate "soon." That math checks out, as the baby is reportedly due in "very early" May.

What exactly is surrogacy?

Surrogacy is a birth option for couples who can't conceive on their own or who don't want to carry a baby, whether for health or other reasons, where another woman carries the baby. In what's called "traditional surrogacy," a surrogate mother is implanted with the father or sperm donor's semen. Since the donor uses her own egg, she's genetically related to the baby.

In "gestational surrogacy," which is what Kardashian and West did, the couple uses in vitro fertilization to implant an embryo that uses their own sperm and egg, or the egg from a donor. That means the surrogate isn't genetically related to the baby. It's a more medically complicated procedure, but is often more effective.

Are surrogate agreements legal?

In the U.S., surrogacy is governed at the state rather than the federal level. California, where the Kardashian-West clan lives, is considered a "surrogacy-friendly" state because anyone can hire a surrogate — a straight couple, a gay couple, married people, single people, anyone.

The laws differ quite a bit by state — in Illinois, for instance, the baby has to be genetically related to one of the parents, and in Florida the parents have to be married. In other states, including New York and Arizona, surrogacy agreements are against the law.

Paying someone for surrogacy is illegal in several other countries including the U.K., Australia, New Zealand and Denmark.

Sakchai Lalit via Associated Press
American Gordon Lake, right, and Spaniard Manuel Santos, left, walk with their baby Carmen at the Central Juvenile and Family Court in Bangkok, Thailand in 2016. They had a high-profile custody battle with a Thai surrogate mother who decided she wanted to keep the baby when she found out they were gay. Foreign surrogacy agreements are no longer legal in Thailand.

What about in Canada?

Unlike in the States, it's illegal to pay for surrogacy anywhere in Canada. Outside of Quebec, the process is allowed as a volunteer service, but money can't change hands, unless it's to cover expenses such as medical care, travel, clothing and/or food.

As part of the Assisted Human Reproduction Act, which went into effect in 2004, anyone who pays another person to carry a baby on their behalf can face a $500,000 fine, or up to 10 years in prison. It's illegal to pay for sperm and egg donations as well, but Canadians can currently buy them from American clinics.

Another difference between the bordering countries is that in Canada, the surrogate mother remains the baby's legal parent at birth.

Quebec is the only Canadian province that doesn't recognize surrogacy contracts at all. It doesn't mean it can't be done as an altruistic service, but in a situation where the surrogate mother changes her mind and wants to keep the baby, the prospective parents can't challenge her.

The federal government has said it wants to ease up on the regulations, which some people have called too harsh. The proposed changes would allow both sperm/egg donors and surrogates to charge for more services.

Andrew Francis Wallace via Getty Images
Asish Purushan holds baby Sidhnarth Jiwan Lall-Purushan with partner Krishneel Lall on the left and surrogate Mazyline McCarthy, at the Michael Garron Hospital, August 24, 2017.

Why isn't it legal everywhere?

As with many issues where reproduction and technology intersect, there are some questions about the ethics of surrogacy. In place where commercial surrogacy is legal, contracts generally involve the surrogate signing over all paternal rights to the paying couple. At a clinic in the Ukraine last year, a surrogate wanted to have an abortion after a heart defect was discovered in the baby she was carrying for a foreign couple — but she couldn't, because she had relinquished all her rights.

Even without paying the surrogate a fee, surrogacy is expensive. Surrogacy In Canada estimates that depending on the pregnancy, the cost is somewhere between $30,000 and $98,000. Because the process is so expensive, there are concerns about wealthy people exploiting poor women. For that reason, Thailand, Nepal and India have all banned commercial surrogacy for non-residents. (Cambodia, though, remains a haven for many foreigners seeking inexpensive surrogate.)

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Even in areas where commercial surrogacy is legal, there are questions about how much it should cost. Some Kardashian critics took issue with the fact that the couple paid their surrogate only US$45,000 when they have a combined net worth over US$510 million, according to Forbes, although experts have said that is in fact the going rate. It's also unclear where exactly the lines are drawn — for instance, some people took issue with the fact that Kardashian didn't invite her surrogate to her baby shower.

What else should I know about surrogacy?

Between 2001 and 2014, approximately 1,100 babies were born to gestational surrogates, according to a study published in the Journal of Obstetrics and Gynaecology Canada.

"It's a lot more common than you would think," Breanne Willoughy-Brown of Canadian Fertility Consulting told Global News. Approximately one in six Canadian couples struggle with fertility, and although many use surrogates, not all of them talk about it.

"Because there is so much shame related to it, your neighbour could be a surrogate and you may not know."

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