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Paid surrogacy in Canada is illegal, however, reimbursement of expenses from intended parents to a surrogate is allowed in Canada. The expenses that can be reimbursed to a surrogate are decided by the jurisdiction in which the surrogacy is taking place. In Quebec, the reimbursement of expenses is circumscribed by the Regulation respecting parental projects involving surrogacy in which the parties to the agreement are domiciled in Québec (CCQ, r. 4.2) (the “Regulation”).[1] This regulation is applicable when the intended parents and the surrogate reside in Quebec.

Under the Regulation, only expenses that the surrogate actually incurs and that are directly related to the pregnancy may be reimbursed. The surrogate cannot profit from the arrangement; reimbursement is limited to genuine costs supported by documentation. The categories of reimbursable expenses under CCQ, r. 4.2 are divided into two categories: those that must be reimbursed, and those that may be reimbursed if the parties agree.

Mandatory reimbursements (s. 1): The following expenses must be reimbursed to the surrogate, or paid directly to the third person who provided the service or product:

• Expenses incurred to obtain any product or service provided by a professional authorized by law to assess the physical condition of a person, provide or contribute to pregnancy care, conduct or contribute to conducting deliveries, and provide postnatal care and other health care;
• Expenses incurred to obtain any drug or device within the meaning of section 2 of the Food and Drugs Act (R.S.C. 1985, c. F-27);
• Expenses relating to the delivery, other than those listed above;
• Fees and disbursements incurred for any legal service, including the administration of amounts deposited in a trust account;
• Expenses relating to an assisted procreation activity within the meaning of the Act respecting clinical and research activities relating to assisted procreation (chapter A-5.01), payable to the center for assisted procreation; and
• Fees and expenses relating to the information meeting on the psychosocial implications and ethical issues of the surrogacy project, payable to the designated professional.

Optional reimbursements (s. 2): If the parties to the surrogacy agreement so agree, the following expenses may also be reimbursed to the surrogate, or paid to the third person who provided the service or product:

• Expenses incurred to obtain any product or service prescribed in writing by an authorized health professional, as well as expenses associated with obtaining a prescription;
• Fees and disbursements for professional consultation services (other than those covered under s. 1);
• Services of a doula;
• Obtaining or confirming medical records or other documents;
• Prenatal exercise classes;
• Maternity clothes or clothes required by the pregnancy;
• Grocery expenses relating to the pregnancy, excluding non-food items;
• Travel expenses, in particular transportation charges, parking, meal, and lodging expenses;
• Expenses incurred to care for a dependent or a companion animal;
• Telecommunications expenses relating to communications between the surrogate and the intended parents, or relating to the pregnancy or delivery; and
• Health insurance, life insurance, disability insurance, or travel insurance.

The regulation does not permit any payment that amounts to compensation or profit for the surrogate beyond these documented, pregnancy-related expenses. Any reimbursement that falls outside of the scope of the Regulation is at risk of a criminal sanction as per the Assisted Human Reproduction Act (AHRA), under section 6(1).

If you are entering into a surrogacy arrangement, both parties should obtain independent legal advice and ensure that every reimbursable expense is clearly outlined in the surrogacy agreement and supported by receipts or other records. An agreement that contains the reimbursement of expenses that are not covered by the Regulation may not be enforceable before the Court in the event of a dispute.

This article is for informational purposes only and does not constitute legal advice.

[1] CCQ, r. 4.2 - Regulation respecting parental projects involving surrogacy in which the parties to the agreement are domiciled in Québec