As international couples turn to Canada, the pressure for legal clarity has grown. Most important is protection for women and babies.

Worldwide, commercial surrogacy services are in high demand, and Canada has become an appealing provider for international couples in search of these services. Although there are some gaps in relevant laws, Canada should not rush to fill the void in the commercial surrogacy market. Protecting women and children from harm should be given highest priority.

India and Thailand used to be destination spots for commercial surrogacy, but they have shut down services to foreigners searching for surrogates. An increasing number of couples have turned to Canada as a preferred alternative.

Unlike some countries, Canada does not restrict surrogacy services to married, heterosexual couples because discrimination on grounds of sexual orientation or marital status is prohibited. Intended parents are quickly granted legal parental rights over children born of surrogacy, the babies usually have a right to Canadian citizenship, and Canadian surrogates have access to excellent, government-funded health care. Though domestic commercial surrogacy is illegal in Canada – payment is limited to reimbursement for costs incurred – intended parents from outside Canada can skirt the law by arranging payment outside the country for Canadian surrogates.

Critics of Canadian surrogacy laws claim these laws are unclear, overly punitive and ineffective, and argue that it would be better to legalize international and domestic commercial surrogacy in Canada. But concern for the protection of children keeps people from wholeheartedly embracing a market in surrogacy services.

India and Thailand closed international commercial surrogacy practices due to concerns about the exploitation of surrogates and after high-profile cases of child abandonment resulted from these practices. Thailand banned foreigners from accessing surrogacy services after the Baby Gammy case, in which a boy with Down syndrome was left with the surrogate when the intended parents, an Australian couple, retrieved his twin sister and left him behind.

Similarly, despite a booming international surrogacy industry, India banned services for non-nationals after stories circulated of abandoned infants. Such cases of “surrogacy orphans” occur when intended parents refuse to claim children born of surrogacy due to divorce, a change of heart or rejection of a child with disabilities. These problems have arisen in some domestic situations, but are  more common with international commercial surrogacy, where the intended parents are far away from the surrogate and the gestated infant over the course of the pregnancy.

The spectre of children abandoned by foreign intended parents has already arisen in Canada with the 2011 case of Cathleen Hachey, a New Brunswick surrogate who was carrying twins for a couple from England. She was left responsible for the infants after the English couple divorced and backed out of the surrogacy agreement. In a text message, the intended mother told her the couple had separated and she wouldn’t be taking the unborn boy and girl because she felt that as a single mother she couldn’t care for twins. Since Hachey was the egg donor, she had legal responsibility for the children. They were ultimately adopted by a couple in Nova Scotia.

Canadian laws banning commercial surrogacy are intended to prevent the exploitation of women and children, and the emphasis on their protection is commendable. But the laws are problematic. For example, fertility lawyer Sara Cohen says they “probably only hurt the people they are trying to protect, because they aren’t clear about what’s legal and what’s not.”

The United States has been deemed a “Wild West” of reproductive medicine because the lack of legislation surrounding assisted reproduction has produced a vigorous market in gametes and surrogacy with very few limitations.

The Canadian government should be cautious in responding to calls by associations like the Canadian Fertility and Andrology Society to allow reasonable compensation for surrogates and gamete donors. Before any such change is made to the Assisted Human Reproduction Act (AHRA), several steps should first be taken to determine and clarify what is at stake.

For example, some critics have noted the lack of transparency surrounding the prevalence of surrogacy in Canada, the number of domestic versus international arrangements, and whether or not the women who serve as surrogates are exploited. Data should be collected and publicized regarding such questions. The AHRA should clarify the current laws so that they are more explicit. Canadian family law should be updated to reflect families formed through surrogacy, clarifying questions of parentage to ensure that children are fully protected.

The complicating factor of Canada’s public health-care system should also be carefully considered in cases where surrogates are carrying for foreign intended parents:  The costs of the surrogate’s medical care for the pregnancy and birth are shouldered by the Canadian government – and Canadian taxpayers.

Residency restrictions might appropriately discourage overuse of surrogates by foreigners, and this might not only address the access issue for Canadians, but might also reduce the risk of “surrogacy orphans” that has occurred in other countries.  Most international intended parents want to be engaged with their surrogates’ pregnancies and are eager to receive their much-anticipated children; but sheer geographical distance increases the risk that couples might simply back out if their circumstances change due to separation or divorce, or if the child is born with unanticipated health problems or disabilities. The high cost of international commercial surrogacy could create a more transactional approach to surrogacy arrangements such that it is easier for some intended parents to simply walk away.

Canada should not rush to fill the void in the international commercial surrogacy market. Despite the significant value associated with family-making, other moral values (such as protecting women and children from harm) should be given the highest priority. As suggested by the title of the 1993 Royal Commission Report – Proceed with care: the final report of the Royal Commission on New Reproductive Technologies – we should, indeed, proceed with care before legalizing international or domestic commercial surrogacy in Canada.

This article is part of the Addressing the Gaps in Canada’s Assisted Reproduction Policy special feature.

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