Paying surrogates in Canada could present new problems for parents-to-be, experts say

Being a surrogate is legal in Canada, but the logistics and legalities of the practice are much different than they are elsewhere and in need of updating, families and medical experts say.

U.S. system is far less regulated, which lets the market determine prices

Kathryn Lee and her family had success using a surrogate, but worry about affordability for others. (Supplied by Alan Lee)

After expensive and ultimately futile in-vitro fertilization treatments, Kathryn Lee sent out a very public plea for help on Facebook: Would anyone be willing to be a surrogate for her family?

"I broadcast it to the world that we were having fertility issues, that I couldn't get pregnant, and that we needed help," she says.

Her post was shared many times and a woman came forward to volunteer. Now, almost four years later, Lee and her husband have a thriving three-year-old boy. And their family is one of the lucky ones, she says.

Surrogacy is legal in Canada, but surrogates are forbidden from receiving any sort of financial incentives or rewards beyond pay for basic expenses. That's not the case in the U.S., which has different rules.

A Quebec MP is set to introduce a private member's bill next month to decriminalize payment for reproductive services, while Prime Minister Justin Trudeau says it's time to have a conversation about paying surrogates. Lee says paying for a surrogate might have made the process easier — but it also might have made the whole process unaffordable.

Because their surrogate was a volunteer and they had already done IVF, it was their least expensive option to have a child.

"We had lawyer's fees we had to pay for, there had to be a contract involved ... there was counselling, [and] we had to reimburse our surrogate for her expenses," Lee says.

"But because she wasn't getting a salary or getting paid, in the grand scheme of things adoption can run you $20,000 to $30,000 — and surrogacy was about a third of that." 

In Canada, donating eggs, sperm, or surrogacy services has been legal since the Assisted Human Reproduction Act was passed in 2004.

But payment beyond covering pregnancy-related expenses continues to be illegal. Punishments for infractions run up to 10 years in prison or a $500,000 fine.

For women carrying a child for another family, parents-to-be are allowed to pay them for things like clothing, food, travel and medical care. But what surrogates get reimbursed for, says Lee, is open for negotiation.

She said they were extremely lucky — their surrogate tried to save the couple money by buying maternity clothing second-hand and didn't charge them for food.

But she's heard of some surrogates who ask for tens of thousands of dollars in expenses.

Different market in the U.S.

"The demand side of this equation has started to grow and that's why we're having this conversation now," says Rene Almeling, an associate professor at Yale University and author of the book Sex Cells: The Medical Market for Eggs and Sperm.

She points to the lack of regulations in the U.S., which effectively lets the market determine prices for services rendered.

Almeling says that while data on providers and prices isn't well-tracked, large agencies will typically pay women between $8,000 to $10,000 US for their eggs. For that money, women will typically do daily hormone injections, spend time going to doctors appointments, and ultimately go through out-patient surgery.

"For sperm, men are typically paid about $100," Almeling says, a price that has remained the same for decades. 

As for carrying a child, a range of about $25,000 to $35,000 US is normal when someone is being paid, says Heather Jacobson, a professor and author of the book Labor of Love: Gestational Surrogacy and the Work of Making Babies, which focuses on surrogacy in the U.S.

In her research, she found both cost of living as well as a surrogate's experience can help determine where someone sits on that pay scale.

"Matching with a woman who has been a surrogate before, for someone else, brings a feeling of a level of safety for intended parents," Jacobson says.

She also says surrogacy is just one piece of a growing industry that also includes fertility clinics, lawyers, counsellors and escrow companies to handle payments. Jacobson estimates there are now around 100 specific surrogate-matching businesses in the U.S.

Legal grey area

Kara Erikson, who has had two healthy children of her own and is now carrying a child for another family, has mixed feelings about compensating surrogates. But she does say parents should be able to give gifts to someone who's carrying their child or do something special for them.

And there shouldn't necessarily be a cap on reimbursement amounts.

"There are a lot of unforeseen costs that can come from being a surrogate. Be it bed rest or C-sections or complications … it needs to be flexible."

She says there's also the sticky business of money being the motivating factor for would-be surrogates.

"I don't think it should be criminalized for people to receive money, but I also don't think it would bring the right type of people to step up to donate or to be surrogates if you're getting compensation for it.

University of Toronto bioethicist Kerry Bowman agrees that the laws need to be updated.

University of Toronto bioethicist Kerry Bowman agrees that laws need to be updating. (Craig Chivers/CBC)

"Things have got to change," he says.

Removing fear of uncertainty

Bowman argues we need to get the fear out of these legally uncertain situations without completely turning the process over to market forces where people could get involved for the wrong reasons.

"We could have women trapped in impoverished situations, where they're really doing it not because they want to put their body on the line, but because they really well and truly need the money," he says. 

He says it's a problem if poorer women are sought out to be surrogates for their country's wealthier people. He points to India and Thailand where commercial surrogacy services are illegal.

"They've closed down because they feel there's exploitation of their citizens," Bowman says 

He says Canada doesn't collect data on how many surrogacies are happening and that Canada's 2004 laws don't have enough clear specifics. Which is why he's in favour of more legal clarity.

"It's really unfair to leave people in such a confusing, murky, convoluted system as the one we have now."