Family Law

Canada Reconsiders Its Harsh Stance On Surrogacy

Canada’s current surrogacy law prohibits monetary compensation for sperm and egg donors -- and if you break the law, you could go to jail, pay a stiff fine, or both.

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Our neighbor to the north is taking a serious look at revising its restrictive assisted reproductive technology laws.  A potential change would make Canada’s legal landscape look more like those American states that allow and encourage surrogacy agreements.  The main change would give intended parents the freedom to compensate egg and sperm donors, as well as surrogates for their time and labor — literally — when they carry and deliver babies. A Montreal-area Member of Parliament, Anthony Housefather — who has the best last name for this topic — announced that he will be presenting a bill to decriminalize the payment of surrogates and sperm and egg donors, in order to support those trying to conceive

Criminal Sanctions. The current law in Canada is harsh. Like 10-years of imprisonment and $500,000-penalty harsh.  Passed in 2004, Canada’s current Assisted Human Reproduction Act prohibits monetary compensation for sperm and egg donors. It does, however, allow altruistic surrogacy where the surrogate is unpaid, except for the category of reimbursement for surrogacy-related expenses. Unfortunately, which expenses fall squarely into that category remains unclear.  Worse, the ambiguity creates scary pitfalls for surrogates and intended parents who are unclear on what can be reimbursed or compensated, and what will instead lead to jail time and hefty fines.

The current law also prohibits third parties from being paid to arrange compensated surrogacy. As it happens, the only person prosecuted under the law has been Leia Picard, a prominent director of a fertility consulting business. In 2014, Picard pleaded guilty to paying egg donors and surrogates, and for taking money to arrange surrogacies in Canada. Fortunately for her, she avoided doing any hard time behind bars.  But unfortunately, Picard and her company were together fined a total of $60,000.

Part of the Picard scandal was that she was connected to a U.S. surrogacy attorney who had herself been charged with defrauding clients. That attorney was found guilty of the misconduct, and some have theorized that if it weren’t for the connection to the unethical attorney, Picard never would have faced prosecution in Canada. But clearly, it isn’t as though Canadian prosecutors are ignorant of the law when it comes to potentially bringing criminal charges against fertility consultants.

Lack of Local Sperm. Another result of the current Canadian law prohibiting payment to sperm donors — in addition to egg donors and surrogates — is that there is only one sperm bank in the entire country, and it is incredibly low on “product.” Although frankly, it’s a miracle that they have any sperm at all. Who are these guys who are just going to the sperm bank and donating for no compensation? Possibly not the most desirable of future fathers.

In any event, those needing the assistance of a sperm donor are forced to look elsewhere — which generally means the United States or other countries. This, of course, adds extra costs, and, possibly more importantly, denies would-be parents the locally grown material for the conception of their children. In 2016, one report showed that there were only 51 total donors at the one Canadian sperm bank — again, all weirdos probably — and, even of those, the specimens greatly lacked in racial and ethnic diversity, severely limiting options for hopeful parents.

Likelihood of Success? Obviously, the fact that one Member of Parliament is talking about this issue doesn’t mean it will go anywhere. And we have yet to even see the proposed bill’s specific language. But I’m optimistic, nevertheless. The trend in North America, well, at least in the United States, has been favorable to surrogacy arrangements. In the last year or so, both Washington, D.C. and Washington State have flipped their laws that once prohibited compensated surrogacy, to now allowing surrogacy arrangements with certain limitations and safeguards (such as requiring independent legal counsel). New Jersey may follow suit soon, and New York is showing signs of heading in that direction.

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So I am wishing you luck, Canada! And Prime Minister Justin Trudeau, I am happy to take your phone call if you have any questions. (No, I’m sorry, we will have to keep it strictly professional.) In the meantime, America is happy to take in your intended parent refugees, and to offer options and assistance for reaching their goals when family building the old-fashioned way just isn’t in the cards.

Also, I got through an entire article about Canada without using the term “eh.” Success!

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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