Desperately Seeking Surrogates: Thoughts on Canada's Emergence as an International Surrogacy Destination

• Author: Karen Busby & Pamela M White
• Pages: 213-243

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Desperately Seeking Surrogates

  ’    

 

Karen Busby & Pamela M White

A. SEEKING SURROGATES

As most countries have laws restricting or prohibiting surrogacy, partici-

pants in surrogacy arrangements can be caught up in a legal tango. Applic-

able legal regimes may include those of the jurisdiction where a surrogate

or the intended parents reside and where a surrogate-born baby is delivered.

At play are immigration and citizenship rules; criminal, family, and parent-

age law; and assisted reproduction legislation and professional guidelines,

especially those governing sperm donation, egg retrieval, and the creation,

evaluation, manipulation, donation, and implantation of embryos. More-

over, as assisted reproduction laws are frequently under legislative review,

participants may nd that a carefully developed plan is no longer feasible.

Even though many countries prohibit in-country surrogacy, only a

small number of jurisdictions, including Turkey and New South Wales,

expressly prohibit their residents from engaging in cross-border surro-

gacy. The Canadian Assisted Human Reproduction Act (AHRA) prohibits

or restricts various assisted reproduction activities but, as this Act is not

expressly stated to have extraterritorial eect, it applies only to activities

engaged in within Canada’s borders.1 As most restrictive or prohibitive

1 SC 2004, c 2 [AHRA]. On extraterritoriality see, for example, Erin Nelson, “Global

Trade and Assisted Reproductive Technologies: Regulatory Challenges in International

214 |      

assisted reproduction laws do not have extraterritorial eect, people seek-

ing to expand their families through surrogacy or gamete donation are free

to gure out which combination of legal regimes is most helpful and then

access care in those jurisdictions.

Intended parents always need to keep in mind status laws (especially

regarding parentage and citizenship) in their country of residence to ensure

that children born oshore to a surrogate do not end up either parentless

or stateless by virtue of incompatible legal regimes.2 If the intended parents

and surrogate both reside in one of the twenty-six European countries that

have signed the Schengen Agreement, the child can cross national borders

without a passport, thereby obviating the need for immediate determination

of status.3 Otherwise, for example, a gay couple needs to nd a surrogate

who will give birth in a jurisdiction that will recognize the couple’s parent-

age. Some would-be parents may want to ensure that the child will be a par-

ticular sex or that the embryo carries, or does not carry, certain genetic traits.

Some intended parents will calculate whether, for example, lower medical

costs or lax approaches to the number of embryo transfers in one jurisdic-

tion are worth the trouble of that jurisdiction’s slower and less certain status

determinations.4 Intended parents for whom cost is not a deterrent will look

for surrogacy regimes that allow them to pay surrogates or, at least, have

some loopholes, making it easier to nd willing participants.

It has been estimated that, by , as many as , babies were born

to surrogates in India and that half of these babies ended up in Western

countries.5 Researchers have voiced concerns about the potential for social

injustice and exploitation when North Americans, Europeans, and Austral-

ians obtain surrogacy services from women living in low-income countries,

Surrogacy” (2013) 41 Journal of Law, Medicine and Ethics 240; Sharon Bassan, “Shared

Responsibility Regulation Model for Cross-Border Reproductive Transactions” (2016)

37 Michigan Journal of International Law 299.

2 See Stefanie Carsley,“DNA, Donor Of‌fspring and Derivative Citizenship: Redef‌ining

Parentage Under the Citizenship Act” (2016) 39 Dalhousie Law Journal 525.

3 See Laurence Brunet et al,A Comparative Study on the Regime of Surrogacy in EU Mem-

ber States(European Parliament, 2013) at para 3.1.2.2, online: www.europarl.europa.eu/

RegData/etudes/STUD/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf.

4 See Families Through Surrogacy’s website for examples of the legal and medical con-

siderations being contemplated by intended parents choosing surrogacy, online: www.

familiesthrusurrogacy.com/surrogacy-by-country and www.familiesthrusurrogacy.

com/agency-ratings.

5 Priya Shetty, “India’s Unregulated Surrogacy Industry” (2012) 380 The Lancet 1633.