Reimbursing Surrogates and Criminal Liability

Although surrogacy in Canada is legal, compensating or otherwise paying your surrogate for a profit is not. Section 6 of The Assisted Human Reproduction Act prohibits the payment of surrogates, offers to pay surrogates and/or advertising to pay surrogates. Although commercial surrogacy is legal in the United States, surrogates in Canada cannot charge and/or receive any wages or profit from carrying a child.

Despite not being able to pay a surrogate for profit, intended parents are permitted to reimburse the surrogate for certain expenses - however, there is no obligation or requirement that intended parents reimburse the surrogate.

As of June 9, 2020, the Reimbursement Related to Assisted Human Reproduction Regulations (the “Regulations”) came into force. As a result, surrogates may be reimbursed for eligible expenses including, but not limited to, travel expenses, legal services, maternity clothing, expenses related to delivery of the child, care of dependants or pets, drugs and other medical devices, etc. Further, and generally speaking, only expenditures documented by a receipt are allowed. Further documentation, such as a declaration, is also required.

A person or persons found to be in violation of the ARHA may face criminal liability and, if found guilty, face significant fines (in excess of $100,000) and/or terms of imprisonment.

In order to ensure compliance with the ARHA and the Regulations, we advise all intended parents to obtain legal advice prior to the surrogate becoming pregnant and, undoubtedly, before reimbursing her for any expenses.