In 2004, the federal government of Canada passed the Assisted Human Reproduction Act (AHRA), which criminalized commercial (paid) surrogacy.
The validity of surrogacy contracts and the process for establishing the child's parentage is governed by provincial and territorial laws.
Surrogacy is increasingly becoming more common in Canada due in part to the rise of infertility issues, and International intended parents being attracted by the high-quality universal health care and relatively liberal regulations.
[2] While monetary or other gain is illegal, the Act allows the intended parent(s) to reimburse a surrogate for out-of-pocket expenses incurred in relation to the surrogacy.
[4] As of 2018, there has only been one conviction under the Act: a 2014 case in which an Ontario company, Canadian Fertility Consultants, was fined $60,000 for purchasing eggs and paying surrogates.
However, this process and the requirements that must be met for the declaration to be approved vary depending on the province/territory, resulting in some cases where the intended parent(s) must adopt the child.
[7] While no genetic connection is required, the surrogate's name is initially listed on the birth certificate along with the intended father (if there is one).
[12] In four subsequent cases, Quebec courts have allowed intended parents to adopt a child born via surrogate.
[9][7] In Yukon and Nunavut, no clear information is available on guidelines or laws for how intended parents establish rights; however, parentage declarations are available.
[19] Canada is one of the few countries which allows international surrogacy and does not discriminate on the basis of marital status or sexual orientation.
This is in part due to its high-quality universal health care and relatively liberal regulations that may be easier to navigate than those in the intended parent(s) home country.
In 2016 and 2017, 45 of 102 babies born to surrogates in British Columbia had intended parent(s) outside of Canada (nationwide statistics are not collected).
[22] They argue that while it is illegal for surrogates to profit from their own bodies financially, the ambiguous language behind the law is problematic and can result in exploitation.
These agencies advertise services that help surrogates and intended parent(s) navigate the complex laws surrounding surrogacy.
There are no clear guidelines from the federal, provincial or territorial governments stating how these agencies can be monetarily compensated for their part in the surrogacy process.
[23] In 2011, Cathleen Hachey, a New Brunswick, agreed to be a surrogate for a British couple; however, three months before the due date of the twins, the intended parents split up and decided to back out of the agreement.
While Hachey was legally responsible for the children as she had been the egg donor, she was able to find an adoptive family; this case increased concerns surrounding international surrogacy.