Nepal, Thailand and India, once popular destinations for Westerners seeking surrogate mothers, have now effectively closed their doors to international surrogacy.
As Canadian law robustly prohibits discrimination based on sexual orientation or marital status, it is one of the few jurisdictions where queer people or those who are not in a marriage-like relationship can be recognized as parents. Intended parents cannot remove a surrogate-born child from its country of birth until the child has a passport, and the intended parents can only apply for a passport after a parentage determination has been made and they are named as parents on the child’s birth certificate. Most Canadian provinces have speedy processes to meet these requirements. Additionally, any child born in Canada is a Canadian citizen — a status many prospective parents consider desirable.
Some intended parents want to ensure the embryo carries or does not carry certain genetic traits or they may want a multiple birth. Nearly two-thirds of Canadians live within a one-hour drive of the Canada-United States border and most passport-holding Canadians can cross this border with ease. While Canadian law on the use and manipulation of gametes and embryos is quite conservative, those seeking less bureaucratic or more radical interventions can simply ask the potential surrogate mother to cross the Canada-U.S. border where IVF would be performed following, for example, sex selection or pre-implantation genetic testing in a more technology-friendly American state.
Canada also offers distinct financial and health-care advantages to would-be parents via surrogacy. Surrogate mothers living in Canada and the children they bear are entitled to fully state-funded pre-natal, delivery and post-natal care, which is of the highest quality. No province has laws requiring or facilitating recovery of costs related to pregnancy or delivery from international intended parents.
Most Canadian women who are employed at the time they become pregnant are entitled to partial reimbursement of the income lost during maternity leave through the national employment insurance regime and some employers top up these benefits, thereby reducing the value of lost wages that intended parents may need to reimburse a surrogate mother. The value of the Canadian dollar is low compared to the U.S. dollar, which reduces the expenses associated with surrogacy, including the surrogate mother’s reimbursable expenses and the intended parents’ post-birth living expenses.
Well-established information and support networks for surrogate mothers, clinics, agencies and lawyers stretch across the country, not only facilitating prospective parent engagement but also ensuring that surrogate mothers are identifiable and healthy and that they and intended parents are well matched and properly informed. Nonetheless, the number of Canadian women willing to act as altruistic surrogates — Canadian law prohibits paying fees to surrogate mothers — does not come close to meeting the domestic and international demand.
Canadian surrogacy participants have been unwilling to speak on the record about paying surrogate mothers a fee for their services. Nonetheless, some researchers believe that such payments are being made by non-Canadian intended parents to offshore accounts, thus encouraging Canadian women to become surrogates for intended parents from outside Canada rather than for Canadians. Canadian criminal law does not apply to extra-territorial acts, so as long as payments are made outside of Canada, an argument can be made that no Canadian law has been violated. The Canadian government has long had policies in place to facilitate the issuance of passports to children born offshore to surrogate mothers for intended Canadian parents. This in spite of the fact that almost all of these offshore arrangements involve a fee for surrogacy services and, therefore, would have been criminally prohibited had the arrangement been executed in Canada.
Should Canadians be concerned about our emerging status as a surrogacy destination? Most of the research supports the conclusion that surrogate mothers in western countries are not being exploited. More than 50 published studies indicate that they are, overall, satisfied with the arrangements. Nonetheless, more can be done to ensure that surrogate mothers are well protected, including more robust restrictions and reporting standards on the use of reproductive technologies such as multiple implants and a requirement that surrogate mothers get independent medical and legal advice. There are research gaps, especially in the Canadian context, on issues such as whether surrogate mothers want ongoing relationships with the children they bear and whether such contact is good for the children. If the latter is the case, we may want to adopt policies that give preference to Canadian intended parents.
Provincial health-care officials should consider whether and how to recover health-care costs from non-Canadian parents. The ability of international participants to structure financial arrangements that may give them a clear advantage over Canadians in attracting surrogate mothers is a matter that also needs more study and consideration. Should such transactions be more carefully monitored for compliance with Canadian law or even prohibited altogether? Alternatively, should the playing field be levelled by lifting the prohibition on commercial surrogacy in Canada?
These are all important questions to consider as Canada’s place in surrogacy continues to evolve.