The murky waters of Canada’s surrogacy baby boom

We need greater regulation of surrogacy in Canada to better protect women who act as surrogates, intended parents and the children who result

By Vanessa Gruben
and Pamela White
Troy Media

OTTAWA, Ont. Oct. 4, 2016/ Troy Media/ – If surrogacy is on the upswing in Canada, why do we know so little about the practice and its implications?

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 other individuals. For many childless couples and individuals, including gay men, surrogacy is one of the few ways to have a genetically-related child.

Vanessa Gruben

And it’s not just Canadians who are seeking surrogacy services. Much of the demand appears to come from people from other countries who wish to be parents.

Why would foreign surrogacy be on the rise in Canada?

Other countries have begun restricting surrogacy services. Examples include India, which recently banned foreign couples from accessing surrogacy services, and Mexico, which prohibits same-sex couples from accessing surrogacy services.

Pamela White

So intended parents are turning to jurisdictions like Canada, where access to non-residents and same-sex couples is unrestricted. And that raises a host of questions.

But is surrogacy really on the rise here?

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?

The truth is, we don’t actually know the answers, even though these are important questions.

Because Canada doesn’t track all surrogacy arrangements, even though 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 the children who result from these arrangements.

There are three steps that federal and provincial governments can take.

First, it’s 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 by outlawing payment to a woman to act as a surrogate.

The act does, however, allow the intended parent(s) to reimburse a woman for certain expenses related to the surrogacy. The act says 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 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 some provinces, family legislation doesn’t set out rules governing parentage where a woman acts as a surrogate.

Parental status is important for several reasons. It determines lineage and citizenship, and it’s important for making health care and other decisions in respect to the child.

Where the law is outdated, there is uncertainty about who the legal parent is. That means 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 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, or the number of foreign intended parents who commission Canadian surrogates.

Limited data on gestational surrogacy performed in Canada does exist – but access to it is difficult since all requests are approved on a case-by-case basis.

Who acts as surrogates and what health risks do they take? We can’t be sure because of a lack of independent data verification, reliance on voluntary reporting by individual fertility clinics that in turn rely on patients to provide information on birth outcomes, and data omissions (e.g., age of the surrogate).

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.

Otherwise, surrogacy in Canada will remain shrouded in mystery – to the detriment of everyone involved.

Vanessa Gruben is an associate professor at the Faculty of Law, University of Ottawa and a member of the Centre for Health Law, Policy and Ethics. Pamela White is a specialist associate lecturer, Kent Law School, University of Kent, U.K.

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