Nfld. & Labrador·Atlantic Voice

Why a patchwork of laws makes surrogacy more challenging in Atlantic Canada

Moira Donovan brings us the story of Terri Taylor who recently fulfilled her dream of being a surrogate mom.
Terri Taylor, seen with Freya shortly after her birth, says she did not want to be compensated. (Submitted by Terri Taylor)

On a wall in Terri Taylor's home, opposite the window that looks onto the quiet Fredericton cul-de-sac on which generations of her family have grown up, there's a series of family photos.

Some of them are pictures of her own children, ranging from their teen years to when they were toddlers.

Others feature twin baby girls, the much longed-for children of Iain and Haley, an Australian couple Taylor met through a surrogacy website.

Taylor isn't related to the twins, Freya and Jenna — nor is she related to their parents.

But she does consider them part of her family.

'We grew our own family'

Taylor points to a picture of herself, her children, Haley and Iain, and the twins clustered together at the centre of the arrangement. This one is more than just another family photo — it's also the outcome of her decision to become a surrogate.

"I didn't just grow two babies, we grew our own family, so that centre one is a pretty good representation of that — my new and expanded family."

Seen at her 30th week of pregnancy, Taylor says she found being a surrogate mother to be quite rewarding. (Submitted by Terri Taylor)

In Canada, hundreds of women every year serve as surrogates for other people, and the number is increasing; when the Canadian Fertility and Andrology Society started collecting statistics in 2001, around 100 women a year were acting as gestational surrogates, meaning they had no genetic relationship to the babies they were carrying.

Now that figure stands at more than 500, but demand still far outstrips supply.

For Taylor, serving as a surrogate was an extension of the same drive to care for others that had characterized her personal and professional life.

"I was never going to be rich, I was never going to donate a wing to a children's hospital, so this was a way for me to give back."

Illegal for surrogates to be paid

But while surrogacy offered Taylor the chance to pay it forward, it wasn't a way for her to be paid.

"[Federal] legislation makes it clear that surrogacy is itself legal, but compensated surrogacy is illegal," says Sara Cohen, a fertility lawyer in Toronto.

I was never going to donate a wing to a children's hospital, so this was a way for me to give back- Terri Taylor

Penalties for breaking the law can include a sentence of up to 10 years in jail or a $500,000 fine. And even though parents can reimburse surrogates for reasonable expenses, reimbursing for the wrong thing is a criminal act.

Because there's a question mark around what constitutes a reimbursable expense, Cohen says 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," says Cohen. "So she can't really protect herself without putting people at criminal risk."

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.

Wary of exploitation

One thing that this drafting of regulations won't revisit is the ban on paid surrogacy, despite the encouragement of groups like the Canadian Fertility and Andrology Society.

University of Saskatchewan professor Alana Cattapan says in addition to idea that commercializing the creation of children is inherently unethical, the ban on payment is based on the as-yet untested idea that paid surrogacy could lead to exploitive relationships.

"We don't have any research that shows that it's exploitative or not exploitative," says Cattapan.

"We don't know a lot about who is engaged, how they're engaged, and because children are born from this and because there is a risk of substantial harm … we could maintain this prohibition in the meantime while research is being done."

In countries like the U.K., research on intended parents, surrogates and children suggests that despite concerns around exploitation, surrogacies are leading to positive outcomes.

Redefining maternal love

For Taylor, the outcome of her surrogacy journey with Freya and Jenna was positive too.

But that doesn't mean the experience was without its challenges: months of hormonal injections and pills to prepare for an embryo transfer; the guilt and grief of a miscarriage; and weeks spent away from her own children while she waited for the twins' birth in Ontario.

Taylor says she is often asked how she could give up her babies. 'That's just not how my heart felt,' she replies. (Submitted by Terri Taylor)

"Because I'd had my own pregnancies, I really had the same expectations. So when all of a sudden wrenches were thrown into our plans, I didn't really know how to cope."

There are changes that could make surrogacy less challenging, including the updating of provincial legislation to make it easier for intended parents in Atlantic Canada to become the legal parents of the child the surrogate is carrying.

But while the popular perception of surrogacy often makes this part of the process the most difficult, for Taylor that wasn't the case.

"People don't understand. They think, how could you give babies away? But you know, that's just not how my heart felt," she says.

"I absolutely fell in love with [Freya and Jenna], but I had to redefine what that meant to me because that wasn't a maternal kind of love, but it wasn't just a regular kind of love either. It was a unique and special kind of love that is surrogacy love … there's nothing else to compare it to."