Can parents abandon babies to surrogates in Canada?

Dara Squires
Published on August 6, 2014

In Thailand an infant with Down syndrome and heart problems is left behind while his parents take his healthy twin sister home to Australia. Did they abandon their child or merely change the terms of a contract?

Who is really the parent of this child — the genetic parents who don’t want him or the surrogate mother who has sworn to raise him as her own given this turn of events? And how much has that mother’s decision been swayed by the donations for the boy’s medical expenses and upbringing that have poured in from around the world?

These are the kinds of questions, in the worst cases, that surrogacy arrangements inspire. And stories like this inspire calls for banning and tougher regulation.

The problem in Canada is that there isn’t really regulation. There’s the Assisted Human Reproduction Act, passed by Parliament in 2004 that makes creating a clone or chimera or paying a surrogate parent illegal.

But there is no federal regulation (despite the act mentioning such regulations) that determines the terms of surrogacy and the legal responsibilities of all parties — not to mention the ultimate fate of the child if the deal goes sour.

Hiring a woman to be a surrogate mother in Canada can net you a $500,000 fine or 10 years in jail. So can using a surrogate, or aiding in the arrangements to use a surrogate, under the age of 21.

It is OK for Canadian families to pay out of pocket expenses to a surrogate mother, such as maternity vitamins, maternity clothes, transportation to medical visits — provided there is a receipt. And it’s also OK to replace lost wages if a doctor determines the surrogate can no longer work. But that is it.

And that is why many families turn to other countries for the surrogacy arrangements. In California, intended parents can enter into a legally recognized “pre-birth contract” that states the rights of each individual within the arrangement, including the child.

In Canada, intended parents of surrogate-born children have to petition to be the parents on record or even adopt their own child because we only recognize the woman who gave birth to the child as the child’s mother.

What Parliament did back in 2004 was create a restrictive environment around surrogacy, driving intended parents into shadowy worlds of cross-border, baby-host shopping and illegal surrogacy consultants who never actually face the law.

What they didn’t do was create usable and enforceable laws that protect the rights of intended parents, surrogates and, most importantly, the child or children who are the products of such arrangements.

Our government’s response to surrogacy was essentially to say “eww, that’s weird and a little scary” and lump it in with cross-species embryo implantation, chimeras and cloning in an act that is rarely enforced yet very restrictive.

The result is that parents who chose surrogacy are skirting the edges of the law and paying expensive legal fees to hopefully make sure they are actually recognized as parents by law.

While generally the surrogacy culture in Canada is a positive one, it stands on shaky ground that could collapse the moment the government decides to enforce the Assisted Human Reproduction Act. And despite the fact that parents are not legally allowed to pay a surrogate, the expense of surrogacy in Canada is about $60,000 for fertility treatments and legal fees. So the doctors and lawyers can collect money from such arrangements but the woman whose body is being used can not.

As for abandonment of a surrogate-born child? Our laws protect that ability. By recognizing the birth mother as the legal parent, intended parents could walk away from an agreement and face only the possibility of breaking a contract. Considering it is the intended parents paying the lawyers and drafting the contracts, it’s highly unlikely that a birth mother would have any protection should a couple chose to abandon their child to her.

The only option would be to sue the genetic parents or parent for child support — and open oneself up to custody battles if the parents again change their mind.

Surrogacy has become a culturally common practice throughout the world, but the laws in Canada — and other countries — fail to recognize it as anything other than “strange” and potentially damaging.

Despite the fact that the Assisted Human Reproduction Act states explicitly that its intent is to protect the health and well-being of children born through assisted reproduction, there are no real federal laws that do so.

All our laws do is drive the practice underground and outside our borders.

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