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Will New Federal Regulations Change Surrogacy and Egg Donation in Canada?

June 17, 2020

Surrogacy Donor Regulations

Authors: Ellen Embury and Rachel West

Many of our clients are asking about the impact of new Regulations under the federal Assisted Human Reproduction Act (the “Regulations”).

After many years of fertility law practice and hundreds of surrogacy babies born to our clients, we continue to be asked: “is surrogacy legal in Canada?”

The answer is unequivocal:  YES surrogacy and egg donation are legal in Canada!  

Surrogacy and Egg Donation Regulations in Canada

However, there are rules which apply to surrogacy and egg donation in Canada.  The main restriction is that Surrogates and Egg Donors cannot be paid for their generous act.

A Surrogate or Donor is entitled to her reasonable reimbursable expenses associated with preparation for the medical procedures, the egg retrieval, the surrogacy process, pregnancy, birth and post-birth.  In order to be reimbursed, the Surrogate or Donor must present receipts or other documentation substantiating the expense. 

Before June 2020, the rules about reimbursement were general, and sometimes vague.  Now, the Government of Canada has introduced new Regulations to the Assisted Human Reproduction Act, which expressly state what expenses can be reimbursed.  This clarity will assist Intended Parents, Surrogates and Donors, alike.  

Regulations on Reimbursable Expenses for Surrogates and Donors in Canada 

The main impact of the Regulations is to provide clarity on reimbursable expenses for Surrogates and Donors in Canada.   The Regulations provide a helpful list of the general categories of what is reimbursable.  The list is largely common sense.   

For both Surrogates and Donors, there is a general category of expenses which include items that are recommended in writing by either a physician (for Donors), or either a physician or a person authorized by the laws of a province to provide care to assess, monitor and provide health care to a pregnant woman (for Surrogates).  

Egg Donor Regulations

For Egg Donors the following expenses may be reasonably related to the donation process:

  • travel expenses to/from the clinic including transportation, parking, meals and accommodation;
  • wage loss;
  • dependent care;
  • pet care;
  • counselling;
  • communication costs;
  • health, disability, travel or life insurance;
  • dietary requirements recommended by the Clinic;
  • medical expenses recommended by the Clinic;
  • legal fees; and
  • expenses for obtaining medical notes.

Surrogate Regulations

For Surrogates the following expenses may be reasonably related to the surrogacy process:

  • travel expenses to/from the clinic including transportation, parking, meals and accommodation;
  • wage loss for medical appointments, medically ordered bedrest or the post-birth recovery period;
  • dependant care;
  • pet care;
  • counselling;
  • communication costs (e.g.: cellphone etc. so that the surrogate can be in touch with the Clinic and the Intended Parents);
  • health, disability, travel or life insurance;
  • dietary requirements/groceries;
  • medical expenses recommended by the Clinic;
  • legal fees;
  • midwife or doula expenses;
  • maternity clothing;
  • communications costs;
  • fitness/prenatal exercise;
  • delivery related expenses;
  • expenses for obtaining medical notes

However, these lists are not exhaustive.  

There will always be categories of expenses which have not been listed in the Regulations.  Therefore,  the Regulations build in a broad general category for products or services which have been recommended in writing by either a physician or a person authorized by the laws of a province to provide care to assess, monitor and provide health care to a pregnant woman.    

The inclusion of this general category has created important flexibility.  It recognizes that there is no one-size-fits-all approach because all egg donations and surrogacies are different.  

Key Things to Remember When Navigating a Surrogacy or a Relationship with a Donor 

Surrogate or Donor Expenses Cannot be Reimbursed from Another Source 

In order to receive her reasonable reimbursable expenses, the Surrogate or Donor must certify that she has not received reimbursement from any other source.  For example, if the expense is for reimbursement of a medical expense, she cannot submit the expense for reimbursement to her insurer and the Intended Parents – that would be double-recovery.  Or, if the reimbursement is for wage loss, the Surrogate or Donor must not have received wage loss benefits from another source (for example: disability benefits or Employment Insurance) and claim the full amount from the Intended Parents.  In this example, only the difference between the net wage loss and the benefit received may be claimed.

The key rule is that Surrogate or Donor cannot “profit”.

As lawyers, we have been drafting legal agreements in compliance with the spirit of the Regulations long before they took effect.  We only work with surrogacy and donation agencies who understand the Regulations, and have a solid financial program in place to ensure compliance with the Regulations.  This protects Intended Parents, Surrogates, and Donors.

Surrogacy and Donor Documents Must be Kept for Six Years

A new requirement under the Regulations is that supporting documents for reimbursements (receipts, invoices, etc.) must be kept for six years.   For many years we have advised our clients that they need to keep a “book” of the records of reimbursement, so this is not a substantial change.

Surrogates and Donors Must Provide a Declaration for Expenses

Pursuant to s. 6 of the Regulations, Donors and Surrogates must sign a declaration which contains:

  1. their name and address;
  2. the nature of each expenditure;
  3. the amount reimbursed;
  4. the date on which the expenditure was incurred;
  5. for travel – address points of departure and destination & distance in kms;
  6. a statement that the expenditure was incurred in the course of donation or surrogacy;
  7. a statement for each expenditure that the amount has not been reimbursed by any source other than the Intended Parents (to confirm they have not profited through double-recovery);
  8. a statement that all of the information contained in the declaration is accurate and complete; and
  9. (if applicable) a copy of the physicians note or written recommendation authorizing the expenditure.

Intended Parents (or their agents who are reimbursing on their behalf) must sign on the declaration that the expenditure has been reimbursed.  

The Government of Canada has provided sample declaration forms which are available here:  Declaration Form: Reimbursement of Expenditures and Declaration Form: Reimbursement of Loss of Work-Related Income

Do These Regulations Provide Substantial Change? 

In our view, these Regulations do not provide a substantial change to the law of surrogacy and egg donation in Canada.   We have incorporated a similar approach into our law practice for many years.  

Intended Parents can safely reimburse a Canadian Donor or Surrogate, as long as they: 

  1. only reimburse expenses that are needed because of the surrogacy or donation;
  2. obtain physician or qualified medical practitioner approval, where required;
  3. keep records of the reimbursements; and
  4. obtain a declaration from the Surrogate or Donor for the expenses.

The Canadian approach to surrogacy and donation is balanced, and protects everyone involved.  The Regulations ensure that Intended Parents can build their families, while protecting against the commercialization of reproduction.   We are proud to practice fertility law in Canada.

Click here to schedule a 1 hour call with Ellen or Rachel to book a free consultation with a Surrogacy and Fertility Lawyer, and we can discuss your needs and answer any questions.  

We look forward to helping you build your family.

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