When considering methods of assisted reproduction, one of the first things to consider is the potential costs involved in the various processes available to prospective parents. Whether looking at in vitro fertilization, surrogacy, or another means, becoming a parent through alternative means may come with costs that can take parents by surprise. Of course, the costs involved for each person or family can vary wildly depending on their specific circumstances and the process they choose, but it can be helpful to have a basic understanding of the costs that may be involved in some of the more common processes.
Below, we will look at some of the common costs involved in surrogacy in Canada.
The regulations regarding payments respecting surrogacy can be found in the federal Assisted Human Reproduction Act, which aims to protect women, men, and children from the exploitation of reproductive capabilities for financial gain.
In Canada, it is illegal to charge or pay a fee for surrogacy services. In other countries, a surrogate may be able to negotiate a fee for their service, but in Canada, it is forbidden. However, this does not mean surrogacy is free or even affordable for all families. There are often several expenses involved, one of the most significant being reimbursing the surrogate for costs incurred or loss of wages due to the pregnancy.
The law pertaining to surrogate reimbursement is set out in the federal Assisted Human Reproduction Act. While the regulations under the Act have been in place for several years, they were updated in 2020 to clarify the various allowable reimbursements, as well as the process for verifying the expenses prior to payment. Before these updates, surrogates could request reimbursement for expenses that may not necessarily have been related to pregnancy, and there were few, if any, requirements to provide evidence of expenses before requesting payment.
The vagueness of the law prompted a 2020 CBC investigation into the cost of surrogacy in Canada before the changes came into effect. In the report, the CBC found that the laws often left parents feeling as though they had been taken advantage of. Many parents interviewed for the article claimed that their surrogacy agency regularly charged them the maximum monthly expenses as set out in their contract without sufficient supporting documentation. When parents requested receipts as evidence of the expenses, they discovered the agency had regularly approved unrelated expenses, such as lottery tickets, or duplicate receipts, resulting in double payment. One surrogate who spoke to the CBC said her agency had encouraged her to save all household receipts, including for expenses incurred by her family members, in order to hit her monthly allowable maximum.
Under the changes that were implemented in 2020, there is now a very clear list of allowable expenses, as well as procedures for proving the expenses with receipts before payment is made.
Families must ensure that any payments made to a surrogate are for permitted costs only, as the penalty for contravening the law is a fine of up to $500,000 and/or up-to ten years in jail. Payment does not have to take the form of an overt payment of funds in exchange for surrogacy services to be considered illegal. So-called “hidden” payments are also prohibited, which may include reimbursement for items unrelated to the surrogacy, such as:
In addition, payments for the procurement of surrogacy services are not allowed, which can include:
As a general rule, reimbursements should not be made for any item the surrogate would ordinarily incur outside of the surrogacy process. Examples of allowable expenses for reimbursement include:
Costs may also vary considerably depending on the type of surrogacy. In Canada, the most common type of surrogacy is called gestational surrogacy, although a small percentage of families opt for traditional surrogacy instead.
Gestational surrogacy occurs when the surrogate is implanted with an embryo created using the intended parents’ reproductive material, or a combination of the intended parents’ material and donated material. In some cases, if neither parent is able to provide reproductive material, the surrogate may be implanted with a donated embryo.
Traditional surrogacy occurs when a surrogate is inseminated with the intended father’s sperm, via intrauterine insemination, in vitro fertilization, or home insemination. In this case, the child would have a genetic connection to the surrogate, which can create additional legal considerations.
Depending on the method of surrogacy, the costs can be significant and can reach tens of thousands of dollars depending on the number of attempts required before resulting in a successful pregnancy.
When all is said and done, the costs of surrogacy can be quite high, despite restrictions on payments to the surrogate. One surrogacy consulting agency recommends that prospective parents budget approximately $60,000 – $80,000 for the surrogacy process, inclusive of legal fees, medical costs, and surrogate reimbursement.
Bringing a child is a joyous experience that should be free of stressful legal disputes. At Mincher Koeman, our family law lawyers protect the rights of clients expanding their families through various assisted reproductive processes. We have extensive experience in the drafting and review of custom agreements designed to clarify the expectations of each party involved from the start and avoid future conflict. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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