The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
American television can often (incorrectly) shape people’s perception of how the Canadian legal system operates. Matters of fertility law are no different. Contrary to what is often depicted in the media, in Canada, it is illegal to provide or offer any kind of compensation (cash, goods, or otherwise) to the donor of sperm or ova, or a party who acts as a surrogate. In other words, those parties who assist intended parents by donating their gametes, or carrying a child on their behalf, must do so on a purely altruistic basis.
Canada’s legislation, the Assisted Human Reproduction Act (AHRA), regulates matters such as sperm and ova donation as well as surrogacy. A person who breaks the law under the Assisted Human Reproduction Act is committing a crime. If found guilty, the person who committed the offence could be fined up to $500,000 or be required to spend up to 10 years in prison, or both.
Canadian law does, however, allow for donors and surrogates to be reimbursed for certain “out of pocket” expenses that they would not have incurred except for the fact that they were acting as a donor or surrogate. Stated another way, donors and surrogates may be able to accept reimbursement for some expenses they incur in the course of acting as a donor or surrogate, as long as those expenses are related to the process and fall within the parameters set out in Section 12 of the AHRA.[1]
Legislation outlining what types of expenses may be reimbursed to a donor or surrogate, came into effect in June 2020 via the Reimbursement Related to Assisted Human Reproduction Regulations.[2] As this is relatively new, there are many aspects of it that remain open to interpretation.
The following are the expenses/expenditures incurred by a donor of sperm or ova or a surrogate that may be reimbursed by intended parents, if incurred in the course of a donation/acting as a surrogate:
| Allowed Reimbursement Expenses | Donor of Sperm or Ova | Surrogate |
| Travelling expenses including transportation, parking, meals, and accommodation | √ | √ |
| Expenses for caring for pets or dependents (a person who resides with the donor and is dependent on them by reason of age or mental or physical incapacity) | √ | √ |
| Expenses for counselling services | √ | |
| Expenses for legal services and disbursements | √ | √ |
| Expenses for obtaining a drug or device, as defined in section 2 of the Food and Drugs Act[3] | √ | √ |
| Expenses for obtaining products or services provided or recommended by a medical practitioner | √ | |
| Expenses for maintaining an in vitro embryo, including storage and expenses for preparing it for transport. This includes the cost for the shipping container, preparing the container for transport, and the expense for transporting an in vitro embryo | √ | |
| Expenses for obtaining products or services provided or recommended by persons authorized to assess, monitor and provide health care to a woman during her pregnancy, delivery, or the postpartum period | √ | |
| Expenses for services of a midwife or doula | √ | |
| Expenses for groceries (excluding non-food items) | √ | |
| Expenses for maternity clothes, telecommunications, prenatal exercise classes | √ | |
| Expenses related to the delivery | √ | |
| Expenses for health, disability, travel, or life insurance coverage | √ | √ |
| Expenses for obtaining or confirming medical or other records | √ | √ |
A surrogate mother may be reimbursed for loss of work-related income incurred during her pregnancy only if a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to the surrogate mother’s health or the health of the embryo or fetus.
The legislation also sets out specific guidelines with respect to the records that must be created and maintained if expenses are to be reimbursed, and which all parties involved with donation and surrogacy should be familiar with.
Intended parents, donors and/or surrogates will often outline which expenses they agree will be paid by the intended parents in their preconception agreement (a contract setting out each party’s obligations in the assisted human reproductive process). If you require assistance with an ova donation, sperm donation, or surrogacy/gestational carrier agreement, a fertility law lawyer at Lerners LLP would be pleased to assist you.
ABOUT LERNERS FAMILY LAW
When much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law lawyers tailor their approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto, London, and the Waterloo Region, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada's most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help.
[1] SC 2004, c 2, s 12.
[2] SOR/2019-193.
[3] Food and Drugs Act, RSC 1985, c F-27, s 2.
