Surrogacy, gamete donation (egg or sperm donation), and embryo donation are legal in Canada. What is not legal is paying any donor or surrogate other than reimbursing expenses incurred by a donor or surrogate and supported by a receipt.
Surrogacy agreements will usually include specific clauses outlining what expenses the parties all reasonably expect might be incurred by a surrogate and reimbursed by the intended parent(s). These may include maternity clothes, psychological counselling, parking costs, travel costs, or medications required by an IVF process that are otherwise not covered by insurance. These types of expenses will be common to many surrogacy experiences.
There are also many kinds of expenses that may or may not be incurred, but which should be considered in surrogacy agreements. These include loss of income if a surrogate suffers a difficult pregnancy and cannot work for the duration, or home care costs (such as cleaning or childcare) that a surrogate may not have to incur during her pregnancy.
As a general guideline, the costs that are reimbursable need to be supported by a receipt, and need to be the type of cost that “but for” the surrogacy arrangement would not have been incurred. For example, reimbursing a surrogate for her mortgage or rent costs is not appropriate: the surrogate would have incurred those costs regardless of whether she chose to act as a surrogate or not. But even very minor expenses such as a parking charge at the fertility clinic, are properly reimbursable as the surrogate would not have incurred those costs had she not agreed to act as a surrogate.
Another standard reimbursable charge is the cost of independent legal advice. Intended parents are expected to pay for an egg or sperm donor and a surrogate to have an opportunity to consult with a lawyer about the draft agreement, and for the costs of negotiating any changes. Using the guideline above, “but for” the surrogacy process, the surrogate would never have incurred those legal costs, and so this type of reimbursement is entirely appropriate.
There are serious potential consequences to intended parents who provide payments to surrogates or to gamete donors. When in doubt, you should speak to your lawyer about which expenses are appropriate. For more detailed information on expense reimbursement, or if you are considering expanding your family through surrogacy, becoming a surrogate, or becoming a sperm or egg donor, you need to ensure you have a lawyer familiar with the area of fertility law on your side.
This blog post was written by Jenny Johnston, a member of our Family Law team. She can be reached at 613-566-2081 or at jenny.johnston@mannlawyers.com.
