In Canada it is against the law to pay a surrogate, although reimbursements are legal. But which reimbursements are lawful?
Some intended parents have said to us over the years "We want to ensure our surrogate is not out of pocket, but we don't want to break the law. How does this work?
The Assisted Human Reproduction Act ("AHRA") is the main law in Canada that governs surrogacy. The AHRA contains reimbursement regulations. The regulations include a list of lawful reimbursements - maternity clothes, disability insurance, prenatal vitamins, medical notes, lost income in relation to the surrogacy, and so forth.
The challenge that can arise is when items are not listed in the regulations.
Some lawyers navigate this dilemma by using the "but for" test. We ask, "but for" the surrogacy would the surrogate have incurred this cost? This is a helpful question to identify if the expense is a legitimate reimbursement or a cost the surrogate would have incurred anyway.
Contracts are also a really helpful tool because they include negotiation and documentation about which reimbursements will be covered, so there can be transparency before the surrogate even becomes pregnant.
through a difficult time?