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New Canadian surrogate rules: What’s being proposed?

The federal government is setting new rules to clarify what expenses a surrogate can be paid for. Kim Smith shares one Alberta woman's experience.

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LISTEN ABOVE: An extended interview with Sara Cohen of Fertility Law Canada

The federal Liberal government is proposing long-awaited regulations for surrogates meant to clarify when women can accept compensation when carrying someone else’s baby.

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Although paying for the services of a surrogate is illegal in Canada — a person caught paying for a surrogate could be fined up to $500,000 and jailed for up to 10 years — women are allowed to be reimbursed for expenses.

READ MORE: Canadian parents want to do more for the surrogates carrying their babies

However, the current law, established in 2004, does not clearly stipulate what is a permissible expense.

“There’s just so much grey. With these new guidelines it will provide more clarity,” Nathan Chan, with the Calgary agency Proud Fertility, said.

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“It will relieve that kind of stress on intended parents or families because it is a punishable act if you’re found guilty of compensating a woman for carrying your baby.”

The federal government proposed new assisted human reproduction regulations in late October that outline what expenses are permitted to be paid. Health Canada is now asking for feedback.

Proposed eligible expenses:

  • travel expenditures, including for transportation, parking, meals and accommodation
  • expenditures for the care of dependents
  • counselling services
  • legal services
  • drug costs, as defined in Section 2 of the Food and Drugs Act
  • expenditures for products or services that are provided to assess, monitor and provide healthcare to a woman during her pregnancy, delivery or the post-partum period
  • maternity clothes
  • costs related to the delivery
  • costs for health, disability or life insurance coverage
  • costs for obtaining or confirming medical or other records
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Why become a surrogate?

Carmen Fuller, 34, is a mom of three healthy kids. For her, it was easy to get pregnant and she took it for granted.

But she also has a decade of experience working as a doula and birth educator and knows the struggles some parents face trying to have a baby.

READ MORE: Canadian sperm donors don’t get paid, so why would they donate?

“I really wanted to create a ripple in the world — just a little act of kindness that might one day pass on to somebody else and somebody else — all because I helped a family have a baby,” Fuller said at her home in Airdrie, Alta.

“For a couple that couldn’t have their own baby. I thought: ‘If I can, why shouldn’t I?'”

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In early 2017, she contacted the Calgary agency Proud Fertility to determine whether she would qualify to be a surrogate. In March 2017, we was matched with a same-sex couple in Mexico and by June she was underwent an embryo transfer.

“Everything from start to finish was great. No real hiccups at all,” she said.

Between 2001 and 2014, approximately 1,100 babies were born to gestational surrogates, according to a study published in the Journal of Obstetrics and Gynaecology Canada last year.

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Should surrogates be paid for their service?

Sara Cohen, of Fertility Law Canada, argues that paying for surrogacy should be decriminalized in Canada and should instead be a regulated as a health issue at the provincial level.

Cohen helped Liberal MP Anthony Housefather draft a private member’s bill to decriminalize payments for surrogate moms.

“The federal government is holding on to these powers, which I think is completely inappropriate when we’re talking about family building,” Cohen said via Skype.

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She said the proposed changes to the regulations are a step in the wrong direction and argues it’s impossible to list all the expenses necessarily for surrogates.

READ MORE: Paying a surrogate in Canada is illegal but one Liberal MP wants to change that

“Often we might have a surrogate in Alberta and the parents are in Ontario, so we’re flying people back and forth,” Cohen said.

“I think we can all probably agree that compensation means the flight. Does that mean I don’t have a suitcase and you’re buying me luggage?”

“Or I have to board my dog so I can fly to Toronto… does compensation include covering kenneling expenses?”

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Cohen said if we look to other jurisdictions where surrogates are allowed to be paid, she said $30,000 seems like a reasonable number.

“In the United Kingdom, where they consider surrogacy to be an altruistic surrogacy, they say anything up to $15,000 pounds, is altruistic.”

READ MORE: Surrogacy in Canada: What you need to know

For a woman who has been through the process, Fuller said she’s on the fence as to whether surrogates should be paid for their service.

She said she’d be worried paying for the service would attract women doing it for the wrong reasons, but on the other hand, she said everyone else in the surrogacy journey gets paid for their job.

“The doctor, the lawyers, the nurses, everything going through the whole fertility process, up until you have the baby, everyone else is getting paid for their job except for the surrogate mother.”


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