From a Toronto Fertility Lawyer: Understanding What’s Allowed, What’s Not, and How to Stay Compliant
Your Surrogate has made you a parent, and you want to give her a generous gift as a gesture of thanks – but don’t. Even when your gratitude is genuine, certain gifts can unintentionally cross into illegal territory. Surrogacy in Canada is grounded in voluntariness, yet the legal boundaries between altruistic surrogacy and commercial surrogacy often cause confusion for Intended Parents and Surrogates. Questions frequently arise about payment, reimbursement, and what the federal law permits.
Canadian surrogacy law is governed by the Assisted Human Reproduction Act (AHRA), which prohibits paying a Surrogate for acting as a surrogate but permits reimbursement of actual pregnancy-related expenses. This framework keeps surrogacy ethical, transparent, and free from financial influence.
A point often overlooked is that many aspects of the AHRA, particularly relating to gifts and reimbursements, have never been tested in Canadian courts. Health Canada provides interpretive guidance, but there is no case law defining where lawful reimbursement ends and prohibited compensation begins.
The guidance below reflects my professional interpretation as a Toronto surrogacy lawyer, shaped by more than 15 years of supporting Intended Parents, Surrogates, clinics, agencies, and other industry partners across Canada.
1. Canada Permits Only Altruistic Surrogacy
Under the AHRA, all surrogacy arrangements must be altruistic. This means:
- a Surrogate cannot be paid for carrying a pregnancy
- no bonuses, stipends, incentives, or flat fees are permitted
- only reasonable, documented pregnancy-related expenses may be reimbursed
This approach protects Surrogates from undue influence and helps maintain fairness across the system.
2. Who Holds Legal Responsibility Under the AHRA?
A critically important but often misunderstood point: the legal risk under the AHRA rests primarily on Intended Parents and intermediaries, not the Surrogate.
Under sections 6 and 7 of the AHRA, it is illegal to:
- offer compensation
- pay compensation
- arrange or advertise compensated surrogacy
- facilitate or broker paid surrogacy arrangements
While Surrogates cannot accept compensation, those who offer, provide, or arrange it bear the heavier legal burden. This is why early legal guidance is essential: Intended Parents are responsible for ensuring the arrangement is structured lawfully from the outset.
3. What Does Commercial Surrogacy Mean?
Commercial surrogacy involves any payment made to a Surrogate for acting as a Surrogate. Prohibited forms of compensation include:
- a “Surrogate fee”
- monthly stipends
- milestone bonuses
- financial incentives of any kind
These are not considered reimbursements; rather, they are treated as compensation and are prohibited by law.
4. Reimbursable Surrogacy Expenses in Canada: What a Surrogate Can Legally Receive
Although compensation is illegal, Surrogates should never be financially disadvantaged for helping Intended Parents grow their family. In practice, most Intended Parents want their Surrogate to feel supported, safe, and cared for, because this is best for her and for their child.
The AHRA and its Regulations permit reimbursement of actual pregnancy-related expenses, such as:
- travel to and from medical appointments
- prenatal vitamins and prescriptions
- maternity clothing
- grocery expenses related to pregnancy needs
- childcare for appointment attendance
- certain wellness or professional services
- net lost wages with a doctor’s note
Each reimbursement must be documented on a Health Canada Declaration Form, supported by receipts. A surrogacy lawyer ensures the reimbursement process is clear, compliant, and properly structured.
5. Gift-Giving Rules and AHRA Compliance for Surrogacy in Canada
No Canadian court has ruled on gift-giving in the context of surrogacy, and therefore interpretations vary. The guidance below reflects Health Canada’s interpretive materials and my experience working closely with Surrogates and Intended Parents.
A Surrogate may receive modest, symbolic gifts with minimal monetary value, provided they cannot reasonably be viewed as compensation.
Generally acceptable gifts include:
- a thank-you card
- flowers
- a small sentimental item
- a modest one-time gift (e.g., a $25 café card)
Potentially problematic gifts include:
- luxury or high-value items
- large gift cards
- spa packages, hotel stays, expensive experiences
- recurring gifts
- milestone gifts tied to pregnancy events (transfer, heartbeat, delivery)
Your simple guiding principle:
If it feels like a gesture, it is likely lawful.
If it feels like a perk, it is likely not.
6. Why Surrogacy Contracts Are Essential
A well-drafted Ontario surrogacy contract, or one from elsewhere in Canada, forms the legal foundation of a safe and ethical journey. A strong agreement:
- confirms that the arrangement is altruistic
- clarifies reimbursable expenses and documentation requirements
- sets expectations early and reduces misunderstandings
- outlines each person’s rights, obligations, and support needs
- confirms boundaries around gifts and personal support
- affirms the Surrogate’s complete bodily autonomy
- satisfies clinic requirements before treatment
- provides the legal structure for parentage after birth
This is also where Plaid, my digital fertility law platform, plays an important role. Built specifically for Canadian surrogacy and embryo, sperm, or egg donation agreements, Plaid allows Intended Parents and Surrogates to draft and negotiate their agreements efficiently and clearly, while ensuring AHRA compliance from the very beginning.
7. The Intention Behind Altruistic Surrogacy
Surrogacy in Canada is unique because it is grounded in compassion, bodily autonomy, respect, and transparent intention. The law protects these values by confirming that Surrogates participate freely and without financial incentive.
Meanwhile, global conversations about surrogacy have become increasingly polarized. As I explored in my previous blog, Surrogacy Under Fire, media attention often focuses on jurisdictions with unregulated systems or dramatic international stories. These narratives do not reflect how surrogacy is practiced in Canada.
Canada stands apart as a safe, thoughtful, and ethically grounded jurisdiction. Our altruistic model (combined with independent legal advice, clinic oversight, and clear parentage laws) creates a stable and supportive framework where Surrogates are respected, and Intended Parents have clarity from the outset.
8. Beginning Your Surrogacy Journey with Michelle Flowerday: Why Legal Guidance Matters
Whether you are a Surrogate or an Intended Parent, legal guidance ensures:
- full AHRA compliance
- clear expectations for everyone involved
- a comprehensive, well-structured agreement
- transparent reimbursement practices
- smooth and timely parentage steps after birth
Surrogacy is one of the most profound acts of generosity. The right legal framework protects that generosity and allows all parties to move forward with confidence.
If you are preparing to begin a surrogacy journey, I would be honoured to guide you every step of the way.