A Brief Legal History of Surrogacy
- Pre-2004 there was no legislation governing surrogacy and this area was unregulated. Surrogacy arrangements often involved payment. However the passing of the Assisted Human Reproduction Act changed this.
- April 2004 – The Assisted Human Reproduction Act is passed. The Act does not ban surrogacy and non-commercial surrogacy arrangements can still be made. Surrogates can also be used by AHR Clinics who can be paid for providing such services. Unlike the UK any contracts or agreements entered into for surrogacy may still be recognised in certain Canadian provinces.
- Section 6 Assisted Human Reproduction (AHR) Act 2004 - this made it illegal to pay a person to act as a surrogate or to advertise to arrange or receive payment for arranging or offering to arrange the services of a surrogate. The Act does not apply to any commercial arrangements made before the Act came into force in 2004.
- Section 6(4) Assisted Human Reproduction (AHR) Act 2004 –prevents the use of a female under the age of 21 to be a surrogate mother.
- Section 12 Assisted Human Reproduction (AHR) Act 2004 - (not currently in force and still under consultation) will enable a surrogate to be paid their reasonable receipted expenses which is intended to include expenses such as maternity clothes, pre-natal vitamins and fertility drugs, travel etc. However it is much harder to recover expenses for the loss of work related income during pregnancy. This requires certification from a medical practitioner that the surrogate could not work during pregnancy because it would have posed a risk to her health or that of the foetus. In addition reimbursement can only be made in accordance with a licence (this would suggest only AHR Clinics would be able to reimburse this type of expenditure).
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