Whenever you ask a lawyer a question, there is inevitably both a short answer and a long answer. The long answer is usually the more thoughtful answer, but sometimes you need the short answer first, so here it is:
Yes, surrogacy in Canada is legal.
However the interpretation of surrogacy law in Canada is not simple.
Is Payment of a Fee to a Surrogate Legal?
The Assisted Human Reproduction Act is federal legislation that applies across the country. It is not a complete guide to surrogacy, nor, dare I say, a realistic guide to surrogacy, but it does dictate how we approach certain aspects of surrogacy. The Act only has a few paragraphs that deal with surrogacy, but the main impact revolves around payment. It is a criminal act to pay or offer to pay consideration to a surrogate. In general terms, it means you can’t pay a fee to a woman so that she will be your surrogate.
What About Reimbursement of a Surrogate’s Expenses?
The Act includes a paragraph about expenses, but it was never passed into law. As a result, we don’t have any regulations or guidance about expenses. It is safe to say that all of a surrogate’s reasonable out of pocket expenses that are connected to the surrogacy can be reimbursed to her. For example, when a surrogate needs maternity clothing, her intended parents can either take her shopping and pay for the clothing, or they can reimburse her for the costs of that clothing. Any limits on expenses or categories of expenses would be set out in the surrogacy contract, as the law does not set any maximums.
To date, none of the Provinces has added any legislation that would further restrict surrogacy. Birth registration is governed by the provinces, and I plan on writing an entire post about the differences between the provinces. Right now the most important thing to know is that the Quebec Civil Code provides that a surrogacy contract is null and void. A surrogacy contract in Quebec is worthless. As a result, it is best to ensure that the baby is not born in the Province of Quebec. More on that later.
Suffice it to say that surrogacy in Canada is legal. Payment of a fee to a surrogate is not. With a bit of guidance and a lot of common sense, a strong and completely legal framework for surrogacy can be structured.