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Legal Update: Changes to Reimbursements of Surrogates and Donors in Canada

Health Canada has released 4 regulations to the Assisted Human Reproduction Act (“AHRA”), along with two draft guidance documents that will be used to help interpret the law. The guidance documents are not yet finalized; feedback is being accepted on them until July 26, 2019.

This blog post will focus on the regulations relating to reimbursements of surrogates and egg/sperm/embryo donors.

To date, the AHRA has said very little about reimbursements. It states that surrogates and donors cannot be paid, but they can be reimbursed for out-of-pocket expenses provided there is a receipt.  The AHRA also says (in a section that was never actually brought into force) that surrogates can be reimbursed for loss of work-related income during pregnancy if a doctor states in writing that continuing to work may pose a risk to her health or that of the baby, and the reimbursement is made in accordance with the regulations (notably, there were no such regulations since the AHRA came out in 2004). Well, that day has arrived. There are officially regulations that tell us what can be reimbursed.

We were pleased to see that Health Canada implemented many of our recommendations respecting reimbursements, including

  • expanding reimbursement of loss of work-related income to include medical appointments and into the post-partum period
  • permitting reimbursement of pet-related expenses (for example, if a surrogate needs a dog-walker while she is in the hospital delivering the baby)
  • permitting reimbursement for housekeeping and snow removal where the surrogate’s health professional recommends she avoid strenuous activity
  •  allowing reimbursement of some food expenses, rather than just meals on the day of appointments as was stipulated in an earlier version of the draft regulations

One important change is that a receipt is no longer enough to claim a reimbursement from intended parents.  The regulations (which will not be in force until June 9, 2020) require a  “declaration” to be completed. Health Canada will be providing a sample declaration form online, although parties do not have to use it. In any event, it means more paperwork for surrogates and donors.

On a more positive note, Health Canada has stated it will take a broad view of what constitutes a receipt. This means that a surrogate who hires a teenager to babysit her kids while going for an ultrasound can create documentation that will suffice for the purpose of the reimbursement.

While the regulations are now published, the guidance documents are still subject to change.

Here are a few items on our wish list:

1.      The regulations permit reimbursement for counselling services. The guidance document focuses on counselling rendered before the donation or pregnancy; however, we have seen clients who wish to speak with a counselor at a later time (for example, a surrogate experiencing post-partum depression). The language should be expanded to contemplate that parties may wish to agree in advance that intended parents will pay for counselling beyond the initial screening session.

2.      Counselling services ought to be expanded to cover a donor or surrogate’s immediate family, who can be deeply affected by their parent or partner donating genetic material or acting as a surrogate.

3.      In order to claim loss of work-related income a surrogate must provide “supporting evidence of the income that she would have earned had she not been absent from work”. This will be virtually impossible for entrepreneurs, women on commission and others who do not have an hourly rate. There needs to be sufficient flexibility to ensure surrogates are not deprived of the right to be reimbursed for loss of work-related income. The guidelines ought to be revised to contemplate such circumstances. Currently surrogates and intended parents negotiate, through their lawyers, an objective and fair formula unique to the surrogate’s circumstances.

4.      Loss of work-related income was expanded to include the post-partum period, but ought to go further. Before becoming pregnant a surrogate will have attended multiple appointments at a fertility clinic, a meeting with a lawyer and a meeting with a psychological counsellor. These appointments take working women away from their jobs, and ought to be reimbursable to ensure their usual income is not reduced.

5.      The draft guidance document states the following principle “There is no obligation to reimburse, meaning that only persons who wish to reimburse eligible expenditures will do so.” While presumably well-intentioned, this language is dangerous and exposes surrogates to exploitation. We will suggest that the principle be revised, perhaps to state that surrogates may choose to forego reimbursements.

6.      The regulations permit reimbursement of groceries, however the guidance document states “the reimbursement can only be for the cost of the additional groceries required to support a healthy pregnancy” and that intended parents (or, presumably a surrogacy agency)  must be able to “demonstrate that the amount reimbursed is consistent with the out-of-pocket expenditure incurred by the surrogate”. This is theoretically reasonable, but practically impossible. No one can state which groceries are purchased specifically because of pregnancy versus what a surrogate would otherwise have eaten. No surrogate is going to sequester “her” food in the fridge so that her children or spouse do not touch it, or check-out twice at a grocery store to separate her food from the family’s grocery bill. Having advised many surrogates and intended parents we can confidently state that food is the most challenging reimbursement category because the lines are inevitably blurry.  Health Canada may be able to soften the language, recognize this inherent challenge, and provide further guidance.

We will be providing feedback to Health Canada on the draft guidance document and look forward to guiding our clients through these legal changes.

If you are considering surrogacy or gamete donation, please get in touch. We will ensure that you receive the most up-to-date information about which laws apply to you. And we just love helping clients create families!

UPDATE: THE GUIDANCE DOCUMENT HAS BEEN FINALIZED BY HEALTH CANADA AND IS AVAILABLE HERE

We are pleased to report that per item 1 above, counselling services may be reimbursed if rendered after the donation or pregnancy:

"Furthermore, donors and surrogate mothers may wish to undergo counselling during the post-donation or post-pregnancy period. This may include (but is not limited to) psychosocial and genetic counselling."

Per item 4 above, loss of work-related income may be reimbursed if women miss work before becoming pregnant in relation to the surrogacy:

"Health Canada is of the view that surrogate mothers may be reimbursed for the loss of work-related income during the pre-pregnancy and the post-partum period, provided they obtain the required written certification from the qualified medical professional and provided the reimbursement is made in accordance with the regulations."

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