The Legal Regulation of Surrogate Motherhood

Assisted human reproduction (AHR) and surrogacy raise difficult ethical and legal questions, U of Manitoba law Prof. Karen Busby told seminar participants Oct. 17, 2018. Most countries prohibit surrogacy, for reasons including religious beliefs and concerns that women may be exploited while taking on a surrogacy role. There are, however, a few countries that permit surrogacy in both commercial and unpaid settings. Canada is one of the few countries that permit not only residents, but also non-residents, to engage unpaid surrogates.

The laws around surrogacy are very complex around the world. They include laws in the jurisdiction where the surrogate mother lives as well as where the intended parents reside and where the baby is delivered. The laws we are concerned with are immigration and citizenship regulations, criminal law, family law, parentage law, assisted reproduction legislation and professional guidelines. Laws and regulations surrounding AHR are constantly under review by legislatures and therefore those who participate in surrogacy may find themselves in situations where their plans are no longer be feasible according to new rules.

Busby discussed property and contract concepts and AHR. The case law in Canada suggests that commercial prohibitions do not apply when a Canadian goes offshore, therefore surrogates may be able to receive compensation in that situation. A bill currently before Parliament proposes to decriminalize monetary compensation of surrogates. Another part of the discussion around AHR regards the loss of stored gametes and what happens to stored gametes upon the breakdown of a relationship.

Busby also discussed Canada as a preferred destination for international intended parents and the benefits and consequences of this practice. There is a high demand for cross-border surrogacy in Canada and it is expected to surge over the coming years. This is due to the fact that most countries prohibit all forms of surrogacy for reasons such as enforcing heteronormativity, gender inequality, issues around money, religious norms, and best interest of the child arguments. If parents in such countries desire a surrogate mother, they are forced to go elsewhere. Should Canada introduce residency restrictions on intended parents?

Busby told law students that lawyers can play a role in ensuring surrogacy is not exploitative.

Slides

Listen to podcasts from seminars in this series.

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