The quick recognition of legal parentage, a commitment to not discriminate, and the provision of high-quality, publicly-funded health care combine to make Canada the world's go-to place for surrogacy. Questions, anyone?
The annual meeting of the Canadian Fertility and Andrology Society (CFAS), a group that comprises doctors, lawyers, counsellors, researchers and various other parties interested in assisted reproduction, took place last week in Montreal, and once again I had the pleasure of attending. This year's theme was "Controversies in Assisted Reproduction." I will be writing about some of these controversies in the coming months.
The one I start with today is cross-border reproductive care — in other words, when people leave their own countries to seek reproductive services elsewhere. Much has been written and broadcast about Canadians who go out of country — to get better prices, to access services that aren't allowed here, or to pay for things that in Canada must be done for free -- but a little less has been said about people who come to Canada from abroad to access in our country what they can't get at home.
Below, I report on a talk presented by Karen Busby, a professor in the faculty of law at the University of Manitoba. Busby was one of the first researchers to draw attention to the fact that many surrogates did not report feeling "exploited" by surrogacy. Her talk this year, however, based on work she has done in collaboration with Pamela White, at the Kent Law School in the UK, looked at a different issue: how Canada has become a top pick for international surrogacy.
An unlikely surrogacy magnet
Here's an arresting statistic: almost half of the babies born to Canadian surrogates in the province of British Columbia in 2016 and 2017 were for intended parents who lived outside the country. That's 45 of the 102 babies born to surrogates there — 44 per cent.
What's the national tally on such outbound babies? We don't know. Rather, we aren't told. The number could presumably be calculated, since individual physicians carry out the procedures and bill for them, and provincial vital statistics offices issue birth certificates. But the information is not publicly available. Then again, we should hardly be surprised, because neither is the total number of babies born in Canada to surrogates for any parent, Canadian or otherwise.
Those BC numbers come to us thanks to the hard work of Pamela White, at the Kent Law School in the UK, who had to put in an access to information request with BC's keeper of vital statistics. She tried the province of Ontario, too, but they said they don't collect data on residency. In the US, such information is mandatorily collected and published by the Centers for Disease Control. White argues that Canadians deserve that level of transparency too.
Anecdotal reports and incomplete data suggest that the number of intended parents (IPs) from outside Canada has been growing in recent years. At the annual meeting of the Canadian Fertility and Andrology Society (CFAS) last week, Karen Busby, a professor in the faculty of law at the University of Manitoba, who co-authored a forthcoming paper on the topic with White, discussed why Canada is becoming an international surrogacy magnet and whether it is desirable.
The backdrop, says Busby, is that worldwide demand is huge. Many people want to be parents and can't do so without surrogacy, but they live in countries where surrogacy is either prohibited entirely, or prohibited for them. China, Japan, and many European and predominantly Muslim countries have restrictions, she says. People in such places who decide to pursue surrogacy must look beyond their own borders.
Coupled with this growing demand is shrinking supply. In the last few years, India, Nepal, Thailand and Mexico — former international surrogacy hotspots — have closed their doors to non-residents.
So why Canada? For one thing, says Busby, Canada is one of the few jurisdictions left in the world that both allows surrogacy and allows foreign participation in surrogacy. Countries such as the UK, South Africa and Israel, she says, permit surrogacy, but not for foreigners. The only other places that allow people from outside the country to access surrogacy within their borders are Greece, Ukraine, Russia, Georgia and a few US states, she says.
For a number of reasons, Canada stacks up well against these others. Russia and Ukraine, for instance, only allow married heterosexual couples to participate. So if you are a single person, or not straight, those places are of no help to you. Canada, by contrast, does not allow discrimination on the basis of marital status or sexual orientation, says Busby.
Canada is also fairly efficient about granting legal parental rights. It varies by province, but generally speaking, IPs can be declared legal parents without a lot of hassle in just a few days, and they can be issued a birth certificate within weeks. Also, any child born in Canada has the right to citizenship, so a passport can be issued, and in short order, the families can head home and start their new lives.
Financially, Canada also compares well, says Busby. Women in Canada enjoy high-quality, publicly-funded health care throughout the pregnancy, during the delivery and after the birth. This is as true for women carrying babies for someone from France or China as it is for women carrying for themselves. Our neonatal care is also top-notch — and also publicly-funded. Another perk is that if a Canadian surrogate has a job, then she may also qualify for employment insurance benefits following birth — to a maximum of $6500, says Busby.
Here's another interesting twist. In Canada, it's illegal — a criminal act, according to the Assisted Human Reproduction Act — to pay a woman to carry a baby for you, or to pay someone else to arrange for a woman to do so. Since the law first passed in 2004, this prohibition has caused enormous handwringing for Canadian would-be parents looking to form their families with the help of a surrogate. They rightly fear that they could be prosecuted for paying a surrogate, and the penalty is steep: up to 10 years in prison and $500,000 in fines. The prohibition has reportedly driven some Canadian families to leave the country to seek surrogates elsewhere.
Ironically, this prohibition, which was designed to deter commercial surrogacy, may actually be stimulating it — and may favour foreign IPs over domestic ones. Domestic IPs may be reluctant to offer money or will only offer it under the table, but because the law is not applied to acts committed outside the country, says Busby, foreign IPs can offer money openly, so long as it changes hands somewhere else. It's conceivable that, given the choice between being paid and not being paid, Canadian surrogates — who are legally allowed to accept the money — may opt to be paid. So foreign IPs may actually be more attractive to Canadian surrogates than domestic IPs.
It is true that foreign IPs coming to Canada will still be subject to our other prohibitions, such as paying for local egg or sperm donations or performing sex selection. But, as Busby points out, most Canadians live near the US border and have easy access to the services offered there. This ability to enjoy the best of both systems only adds to Canada's appeal.
All of these factors help to explain why Canada has become a go-to place for surrogacy. I'll add one more. There are Canadian doctors, lawyers and agencies who actively recruit IPs from around the world. If foreign parents weren't already aware of Canada's considerable merits, representatives of the industry are more than happy to point them out. In fact, later this week the newly-minted president of the CFAS himself, alongside the CEO of the nation's top surrogacy agency, will be in London, UK, promoting Canada as a premier surrogacy destination.
And they are right: for all of the above reasons, Canada is a great place to do surrogacy. Loads of people want to come here and we can only expect that number will grow.
Who picks up the tab?
Not everything about this picture is rosy, however. A big question is whether Canadians need to think about recovering medical costs. Pregnancy care, even for an uneventful pregnancy, costs money. So does birth. The average uncomplicated birth in Canada rings in at between $3000 and $6000, depending on whether it's a vaginal or surgical delivery. Complications can increase that figure considerably. Neonatal care can also be pricey. For instance, according to the Canadian Institute of Health Information, care for a baby born at 29 weeks weighing under 1 kilogram costs an average of $91,946. One baby.
"I am pretty sure that if you asked the average Canadian whether or not the Canadian health care system should pay for any of the health care costs incurred in order to produce a child for a non-resident IP, the answer would be no," Busby told the meeting. "In fact, I think it would be an emphatic no."
As far as Busby is aware, no province has put in place laws or policies to recover the cost of surrogate pregnancy care. (A few Ontario hospitals have started charging for infant care, if the infants are for out-of-province parents.) Busby says governments could consider measures like asking IPs for money up front or not issuing a birth certificate or passport until the bill is settled.
That's a lot of work. It would involve coordination across departments and even, in some scenarios, levels of government. Another option, she says, would be to follow the lead of other countries and create residency restrictions, stipulating that only people who live in Canada can work with a surrogate here. That option would, in one fell swoop, alleviate the shortage of surrogates available to work with Canadians and eliminate the cost recovery conundrum.
That would be a tidy solution, and, all things considered, maybe the most workable one. The cost recovery issue is challenging. Access to surrogates by Canadians is challenging too. And there are other problems. Our country is struggling under a 14-year-old law that still hasn't rolled out its regulatory details. We are woefully lacking in transparency about surrogacy -- and assisted reproduction in general. Finally, although preliminary findings are reassuring, we have not yet done nearly enough research to establish that Canadian women who act as surrogates are not exploited.
I am not hopeful, given Canada's track record in this sphere, that we will crack these tough problems any time soon, or ever. But if we did somehow get our house in order, I would be the first to ask: if you believe that surrogacy is a legitimate way of achieving parenthood, what is the argument against welcoming it here?
"Desperately Seeking Surrogates: Thoughts on Canada's Emergence as an International Surrogacy Destination," by Karen Busby and Pamela White, will be published this autumn as a chapter in Surrogacy in Canada: Critical Perspectives in Law and Policy, edited by Vanessa Gruben, Alana Cattapan and Angela Cameron.
If you have ever been a surrogate, please consider adding yourself anonymously to SurroMap, a map I'm building to better describe how surrogacy takes place globally. To place yourself on the map, just answer nine quick questions here. A full map and article based on the data collected will follow sometime next year.
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