‘Anything goes’ in Canada’s surrogacy system, which gives foreign parents advantage over Canadian ones
Norwegian Hilde Reva is in Ottawa this week, awaiting the final legal paperwork that will make Canadian-born baby Julie hers.
Baby Julie began as an embryo fertilized by Reva’s husband Christian, shipped to Toronto last year from Europe and implanted into the womb of a Canadian surrogate mother, Amy Cameron.
Cameron delivered the child at an Ottawa birthing centre, her medical expenses for the delivery covered by the Ontario Health Insurance Plan.
Until the lawyers finish their work, eight-week-old Julie is Cameron’s baby, not Reva’s. And in the eyes of the Canadian government, the child is a Canadian citizen.
It all speaks to the complicated and murky rules around surrogacy for foreign families, surrogates and Canadian taxpayers.
Canada’s surrogacy laws: wild west
With a recent boom in the number of foreign families looking to Canadian surrogates, advocates say it’s time to end the “wild west” of Canada’s surrogacy regime.
“Anything goes,” said Arthur Leader, a partner at the Ottawa Fertility Centre, who frequently advises governments on policy related to assisted human reproduction.
He’s calling on federal and provincial officials to sit down and hammer out some long-awaited rules, because currently the system “doesn’t protect anybody and doesn’t act in the best interest of the child or the commissioning couple or the surrogate.”
Large swaths of the Assisted Human Reproduction Act were struck down in 2010 by a Supreme Court of Canada decision, leaving a number of issues unclear, including compensation for surrogates, the use of the public health care system and the legal rights of the intended families.
Compensation open to ‘interpretation’
For instance, surrogates in Canada cannot be paid a fee for service, they can only be reimbursed for certain expenses — but what those expenses are is not well defined.
“So there are variations of interpretation of the law on that one,” said Sally Rhoads-Heinrich, the founder of Surrogacy in Canada Online (SCO), one of the largest of a handful of agencies that connect families — foreign and domestic — with Canadian surrogates.
Taxpayers on the hook for prenatal care, birth
Canada’s universal health care system helps cover pregnancy and delivery costs of the surrogate, as it does with any other mother-to-be, further keeping costs down.
Some agencies emphasize Canada’s price advantage in their advertising, noting that U.S. agencies make international families pay for health insurance for the mother.
The publicly funded health care contribution varies, but the Montfort Hospital in Ottawa, in a statement to CBC News, estimated the cost for a non-C-section hospital birth is $2,448 per day, not including the physician’s fees.
The surrogate is also supported through the employment insurance program if she has to leave her job before her due date.
It all contributes to Canada’s reputation as a rising star in the international surrogacy market in which Canadian families seeking surrogates risk being crowded out by foreign families.
“We are not as diligent as we could be sorting out who is international and who is Canadian,” said Leader.
Rhoads-Heinrich has seen interest from international families jump since countries such as India, Thailand and Mexico shut down foreign surrogacy. She has 500 people on a waiting list for Canadian surrogates and has, for now, stopped accepting new applications.
Pamela White, one of the only researchers examining international surrogacy in Canada, wrote about this country as a “booming foreign destination.”
She told CBC News that at a conference she attended in London in the spring, one Canadian agency bragged about Canada’s health care system.
‘So I ask myself, is this what we intended with Medicare?’ – Pam White, professor, University of Kent
“So I ask myself, is this what we intended with Medicare, and how do we address the situation?” said White, with the Kent Law School at the University of Kent in Canterbury.
But, she said, a balance must be struck so that over-regulation doesn’t drive surrogates underground. “You don’t want to be heavy-handed.”
‘Data deficit’ on foreign surrogacy
White said there is a “data deficit” in this area, making it harder for governments to assess the impact of this surrogacy baby boom.
Ontario’s Better Outcomes Registry and Network (BORN) keeps track of surrogacy births in the province but does not provide information about how many of them are to parents from abroad.
BORN does say that in 2013 and 2014, the number of surrogacy cases involving mothers carrying unrelated babies remained stable, just above 400 per year (2015 figures won’t be released until September).
Meanwhile, the U.S. Centers for Disease Control does track foreign families using American surrogates and has found a jump from six per cent of surrogacy births in 2006 to 18 per cent in 2013.
Whose baby is it?
Advocates for Canada’s surrogacy system are also concerned the lack of rules has left families from abroad vulnerable with respect to their legal rights as parents of unborn child being carried by surrogates.
According to Canada’s system, the baby belongs to the woman who gave birth, and the intended parents sign an agreement with her to turn the baby over to them. But birth moms can back out.
Indeed, Montfort Hospital’s policy states:
“At any time, the surrogate mother has the right to change her mind concerning the adoption of her newborn and may revoke any consent form she may have signed previously, independently of any pre-existing legal agreement. Hôpital Montfort is not bound to honour the legal agreements.”
“I call it kidnapping,” said Rhoads-Heinrich.
She said California and some other states have created a “pre-birth order” which makes the intended family the legal parent(s) of the child in utero and removes rights from the surrogate, taking effect as early as four months into the pregnancy, depending on the jurisdiction.
Health Canada did not respond directly to questions from CBC News about whether it will review the act affecting surrogates. The department said in a statement it “regularly reviews its acts and regulations to ensure that regulatory frameworks keep pace with the latest scientific advancements.”
Pay surrogates, says agency
Rhoads-Heinrich said commercializing the system — allowing surrogates to be paid — would take care of any concern about abuse of the Canadian taxpayer. And raising the cost would likely end the foreign surrogacy boom.
“Because we’d have more surrogates and we’d have more Canadian couples able to have that family that they’re dreaming of,” she said, noting there are thousands of embryos sitting in clinics “and they’re not coming to life because there simply are not enough surrogates.”
But the fact that Canada’s surrogates do not benefit financially is an attractive feature for many foreign families.
Hilde Reva and her husband Christian said it is one of the reasons they looked to Canada for a surrogate.
In a recent interview with CBC News, Reva explained, “Women are doing it for the right reasons.”