More clarity needed around surrogate expenses: Cohen

By AdvocateDaily.com Staff

Despite the growing number of surrogates — and the demand for them — in Canada, there remains considerable confusion around how their expenses are paid, Toronto fertility lawyer Sara Cohen tells the CBC.

The latest numbers from the Canadian Fertility and Andrology Society show that more than 500 women in this country serve each year as gestational surrogates — meaning they have no genetic relationship with the babies they carry. When the organization started collecting statistics in 2001, that number was only 100 surrogates, says the national broadcaster.

And demand still far outstrips supply, the article says.

Cohen, founder of Fertility Law Canada at D2Law LLP, says ”[Federal] legislation makes it clear that surrogacy is itself legal, but compensated surrogacy is illegal.”

And the penalties for breaking the law are stiff: up to 10 years in prison or a $500,000 fine, says the CBC. Parents are permitted to reimburse surrogates for reasonable expenses, but reimbursing for the wrong thing is a criminal act, says the article.

“In its 13-year lifetime, the Assisted Human Reproduction Act has resulted in exactly one conviction, and the federal government is only now fleshing out the regulations that will govern the reimbursement of surrogacy expenses,” says the CBC.

Cohen says that since there are questions around what constitutes a reasonable expense, this puts both parents and surrogates in an awkward position.

"If there's an issue, and the surrogate says, 'Hey, you were supposed to reimburse me for X, Y and Z,' and the parents don't, the surrogate is in a really lousy position, because she doesn't know if it was legal or illegal, and she doesn't want them to get into trouble," she says.

"So she can't really protect herself without putting people at criminal risk." Listen to CBC Radio

In an interview with AdvocateDaily.com, Cohen says the law needs to be changed to permit compensated surrogacy in Canada.

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