In 2015, Natasha Nash, a kitchen designer and mom of two boys in Carleton Place, Ont., took on an additional role: being a gestational surrogate. While she found it to be an amazing experience, it wasn’t always easy. Over 18 months, she underwent dozens of medical appointments, ultrasounds, blood tests and more than a little discomfort. “A lot of people look in your uterus when you’re a surrogate,” Nash says. But the hardest part was how time consuming the process was. “I was away from my family a lot,” she recalls.
While Nash says the physical toll was minimal—she had a smooth, five-hour labour—the process did have a financial impact on her. The baby’s springtime due date coincided with her industry’s peak season, and her missed weeks of work set her earnings for the year back by half. And because of Canadian law, Nash couldn’t earn a nickel from carrying and delivering the baby.
In Canada, both traditional surrogacy, in which a woman carries a pregnancy that was conceived using one of her eggs for another person, and the far more common gestational surrogacy, in which the pregnancy is conceived using another woman’s egg, are legal. But Canadians are prohibited from compensating surrogates, egg or sperm donors, or anyone acting on the surrogate or donor’s behalf. Though you can cover a surrogate’s expenses, paying, or even offering to pay, for someone to carry your child could result in a $500,000 fine and up to 10 years in jail. However, only one charge—against the owner of a surrogate agency—has ever been made.
A new bill might mean the end to that law. On May 29, Liberal MP Anthony Housefather tabled a private member’s bill in the House of Commons to decriminalize compensation for surrogates as well as sperm and egg donors.
It’s a bill that’s generating some controversy. While some believe that it’s only fair to compensate surrogates for the time-consuming, physically intensive and potentially dangerous job of carrying and birthing a baby, others believe adding money to the process will drive up the price of an already costly process for families that are struggling to conceive. Plus, there are concerns about the possibility of commodifying human life.
Sara R. Cohen, a lawyer with Fertility Law Canada who helped to draft the new bill with Housefather, believes that decriminalizing compensation will give Canadians, and women in particular, more choice. “This is very much a feminist issue,” she says. In March, Cohen and Housefather penned an op-ed in the National Post that stated: “Adults in Canada are able to make rational choices as to what to do with their own bodies and do not need criminal prohibitions to protect them.”
But Alana Cattapan, a professor at the University of Saskatchewan who researches and writes about assisted reproduction and the commercialization of the body, is more skeptical. “I support people building their families using egg or sperm donation or surrogacy, but creating a market for it just seems like it's not something we want to do.”
She believes that decriminalizing compensation would limit access to surrogacy and egg and sperm donors by making it prohibitively expensive for some families. Her fears aren’t unfounded. In California, a first-time surrogate can earn $50,000 for a pregnancy (experienced surrogates typically demand a higher price), with additional medical costs and other expenses running parents thousands more. Attempts to cap the price of a donor egg in the US have even led to lawsuits over alleged price fixing.
Nash never expected to be paid for being a surrogate. Long interested in the idea, she decided to become a surrogate three years ago after re-connecting over Facebook with an old college classmate who was looking for someone to carry her child. Following a conversation with her husband, Nash volunteered.
The process began with filling out a 100-page-long questionnaire, administered by the surrogacy agency her friend had hired, to find out if they were a match. It touched on everything from diet to selective embryo reduction.
Paperwork was just the start of a lengthy journey. While Nash and her intended parents—the term used in the surrogacy community for the individuals who will be taking the baby home—were officially matched in September 2015, the baby wasn’t born until March 2017. In between, there was psychological testing (even for Nash’s husband), dozens of painful hormone injections to prepare her body for the embryo transfer and a miscarriage. There were also frequent visits with the intended parents, who live almost five hours away from Nash.
Originally, Nash believed that surrogacy shouldn’t involve compensation, “I thought that commercialization was taking advantage of people’s inability to have children.” But as she went through the surrogacy process and saw how heavily commercialized it was compared to traditional childbearing, she began to feel that it was unfair that everyone else involved—from lawyers to psychologists—was being paid. “Except for the person who is putting their life on hold.”
While she found surrogacy to be a rewarding experience, it was also a big time commitment, in part because she had to travel to a fertility clinic near the intended parents. Since implanting an embryo is a time-sensitive process that requires daily monitoring, she ended up spending weeks away from her family. Now, she believes, “you should have the choice” on whether or not to compensate surrogates, and egg and sperm donors.
Currently, Canadian surrogates, egg and sperm donors can charge for expenses. However, because current legislation doesn’t define which expenses qualify, there is what Nash calls a grey area.
Nash explains that while her intended parents promptly covered all of her travel expenses as well as pregnancy-related costs like prenatal vitamins, some intended parents will push back and refuse to pay for expenses related to medical appointments or even maternity clothes. “Often surrogates feel so bad about asking for these things that they end up paying out-of-pocket,” says Nash. While some of this is due to parents trying to save a buck, Nash says others are worried that even providing a gift of flowers could result in legal action. On the flip side, she adds, there are surrogates who push the definition of what an expense is; for example, charging for car payments.
This confusion around expenses leaves surrogates, donors and parents vulnerable, says Cohen, “These aren’t criminal activities—they are health or parentage activities,” she says. Cohen explains that if compensation is decriminalized, surrogacy and egg and sperm donations will then move to the domain of the provinces, which oversee health matters and can establish much-needed rules around topics such as expenses, how many times a single donor can be used in a population or how surrogacy agencies are run.
But Cattapan says some of the work around these rules, including defining expenses, is already in progress at a federal level. After years of neglect under the former Harper government, regulations around surrogacy and egg and sperm donation are now being created by Health Canada, which should provide some clarity. Cattapan worries that the passing of Housefather’s bill could derail that work and leave some Canadians even worse off. She says that since most provinces are home to only one or two fertility clinics, they will be uninterested in creating the legislation that the field needs. “BC, Ontario and Quebec are the only provinces that would likely engage in this because they have the most fertility clinics,” she says.
Reaction to the bill from intended parents is mixed. Carrie Jane* is an Ottawa mom who is looking for a surrogate to carry her second child and wonders, if the new bill passes, if it could impact her plans. Jane’s first child was carried by her sister-in-law, who volunteered to be the couple’s gestational surrogate after learning that Jane can’t carry a baby. However, medical reasons prevent her sister-in-law from carrying another baby so Jane is looking for a new surrogate online.
Jane regularly participates in a Canadian online message board for surrogates and intended parents. She says that while the intended parents she chats with are intrigued by the bill’s potential to boost the number of surrogates and sperm and egg donors, they’re also nervous about the financial impact. “It shouldn’t become a luxury for the rich,” says Jane.
While current legislation became law in 2004, its originates from a 1980s royal commission on assisted reproductive technologies that Cohen says was rooted in “a fear that people were going to exploit vulnerable women and make them breeders.” There’s no denying that commercial surrogacy can have a dark side. Last year India shut down its billion-dollar surrogacy industry after years of unethical and illegal practices, such as implanting women with more than the allowed three embryos.
But Cohen notes that, in regions that have a similar social-economic makeup to Canada, “we’ve seen that those terrible situations rarely happen.” She highlights a 2010 paper by Canadian law professor Karen Busby that examined nearly 40 empirical studies on surrogate mothers who primarily lived in the US and Britain. It concluded that, “The empirical research focusing on surrogate mothers in Britain and the United States does not support concerns that they are being exploited by these arrangements, that they cannot give meaningful consent to participating, or that the arrangements commodify women or children.”
Still, Cattapan sees this discussion as one that comes down to Canada’s values. “Women are able to use their bodies in whatever way they want—they just can’t be paid for it,” she says, noting that this is in line with how we generally treat blood, tissue and organ donations.
Despite her hesitations about the bill, Jane notes that one good thing will come out of it: attention for a topic that’s all too often hidden. “Hopefully,” she says, “it will increase the conversations around surrogacy.”
*Name has been changed.