Canadian citizenship in assisted reproduction

Yet another one of the wrinkles of citizenship policy.

Has some similarities to adoption citizenship issues, where parental pressure resulted in the Conservative government making the needed changes to allow adopted children to be considered citizens rather than having to enter Canada as Permanent Residents:

In a 2015 article I asked: “does sperm have a flag?” The answer is, as it turns out, yes. And in the context of Canadian citizenship, it seems likely that eggs and wombs have flags too – although we can’t yet be entirely sure. But one thing is clear: a genetic/biological relationship plays a critical role in citizenship – even in this contemporary era of reproductive technologies and diverse practices of family formation.

Canada’s Citizenship Act enables people born abroad to a Canadian-born citizen parent to be Canadians. But who is a parent? Traditionally, marriage turned husbands into (presumptive) fathers and mothers were women who gave birth. All Canadian provinces (which have jurisdictional authority for domestic parentage determination) maintain this definition, and they also include provisions for cohabiting different-sex partners. Some provinces have gone further, including specific provisions for same-sex partners, and incorporating provisions to name parents in situations involving assisted conception and surrogate mothers.

In all provincial statutes that address parentage and reproductive technologies, donors are notautomatically considered parents, despite their genetic relationship to the child. Surrogate mothers are considered mothers until they waive their rights. In British Columbia, it is possible for three people to be named parentsto a child, and in Ontario, up to four people can be named parents – but both provinces require a preconception agreement among the parties for these parentage designations to apply.

The provinces are not the only jurisdictions that are required to define who are parents. Given that citizenship status is a federal jurisdiction, and that the vast majority of Canadians become citizens on the basic criteria of birth, one might imagine that parentage would receive some attention in the federal Citizenship Act.  While the word “parent” appears 95 times in the English text of the Act, it is never defined. As far as how children are understood, the Act tells us that a “child includes a child adopted or legitimized in accordance with the laws of the place where the adoption or legitimation took place.”

So, what should be done about children born abroad with the assistance of reproductive technologies?

Since the Citizenship Act is imprecise on exactly who constitutes a parent, the courts have necessarily been compelled to offer clarification. With regard to reproductive technologies, the case of record on this matter is Canada (Citizenship and Immigration) v. Kandola 2014 – heard by the Federal Court of Appeal. There, the court determined that a genetic relationship with a Canadian parent was required for a child born abroad to acquire Canadian citizenship.

The case involved the denial of Canadian citizenship to a child born in India to a Canadian father married to an Indian mother. The couple was forthright with citizenship officials regarding their use of reproductive technologies in the conception of their child and the fact that neither parent was genetically related to their daughter, even though her mother had given birth to her. In the lower court decision, the judge had ruled that the child was indeed a Canadian because she was born to married parents – she was “legitimized…in accordance with the laws of the place where the legitimation took place.”

In the Federal Court of Appeal, however, the court held that the absence of a genetic tie to her Canadian parent meant that the child was not a Canadian. The fact that her parents were married when she was born – and thus, that her birth was legitimate – did not suffice, since to be legitimized, as the Citizenship Act states, requires a prior state of illegitimacy.

The justices also examined the meaning of the word parent. Finding that the term was unhelpfully ambiguous in English, they sought clarity in the French text of the Act. In their reading, in order to be born of a father (né d’un père) or a mother (né d’une mère), a child would have to be genetically related to her Canadian parent. And while the Kandola case did not concern a Canadian citizen mother, the justices opined that both genetic and gestational motherhood would be required in order to confer Canadian citizenship from mother to child.

One might appreciate the clarity of genetic relationship as a means for determining citizenship for children born abroad. Unfortunately, though, genetic relationship is not an especially reliable indicator of a parental social identity or commitment. Indeed, one can envision the possible, lucrative opportunities for Canadian men abroad that such a genetic definition of citizenship would confer. But more seriously, as the availability of reproductive technologies increases and the domestic definition of parentage and families expands, this narrow cleaving to genetics – to Canadian blood – fails to reflect the realities of Canadians’ lives and practices of family formation. We can do better.

Taking the lead from provinces that already have provisions for parentage determination in situations involving reproductive technologies, a revised Citizenship Act (or regulations) could require that Canadian parents register their intent to seek out reproductive services and the possibility that their child could be born abroad.

Parents could be required to provide supporting evidence from health care providers; and the Canadian regulations might limit recognition to certified providers, clinics or hospitals. Such provisions would apply to people normally resident in Canada who seek out foreign reproductive health services, and would address a broader social interest in the health and well-being of Canadian-citizen parents and children, as well as international human rights obligations to protect women from exploitation. For Canadians who are resident abroad and thus less likely to be aware of Canadian legal developments around parentage, the Act could rely on the parentage provisions of the country of residence – as it currently does for the definition of a child.

In the context of Canadian citizenship and foreign adoptions, Canadian law underscores the importance of a genuine parent-child relationship. By contrast, the citizenship of children born to Canadian parents requires only genetics. Surely people who pursue parentage through the use of reproductive technologies are sufficiently genuine in their intent to form a parent-child relationship that they, too, can confer citizenship on their children. It’s time for Canada’s Citizenship Act to catch up.

Source: Canadian citizenship in assisted reproduction

ICYMI: This English same-sex couple fathered twins who are half-siblings — and a Canadian surrogate helped them

A different wrinkle to birthright citizenship (see earlier How Canada became an international surrogacy destination [another form of birth tourism]) as well as U.S. example below:

With two kids under two, the Berney-Edwards household in southeast England is a busy one. There are toddlers running all over the place. One pokes his dad in the eye and laughs before accidentally hitting his sister with a toy vacuum cleaner, causing her to wail. It can be a bit chaotic.

But Graeme and Simon Berney-Edwards wouldn’t have it any other way. As gay men, there was a time when they thought they could never have any of that.

Now, however, they have their twins, the result of an arrangement involving a Canadian surrogate and Canadian surrogacy laws they feel are more progressive than those on the books in the United Kingdom.

“You see them tearing around and they’re having fun, and just for a moment, you just sort of step back and go ‘Wow, this is it. They’re here,’ ” Simon Berney-Edwards said in an interview at their home in Redhill, south of London.

“It can be very surreal,” his husband Graeme Berney-Edwards chimed in.

When they decided surrogacy was the way they would have a family, they reached out to a surrogacy organization that helped them understand their options.

That organization connected them with a clinic in Las Vegas where in vitro fertilization took place. That’s also where they learned they could have twins and each be a biological father to one child by fertilizing half of their American donor’s eggs with Simon’s sperm, the other half with Graeme’s sperm, and then implanting the embryos in the same surrogate.

It means Alexandra and Calder, now 21 months old, are twins but only half-siblings. Born just minutes apart, they have the same biological mother, but different fathers.

They quickly chose to have the birth take place in Canada rather the U.K. That was because, they say, the surrogacy laws in their country are dated, primarily as a result of the U.K. considering the surrogate, and her partner, if she has one, to be the legal parents for the first six weeks of the child’s life.

“And in that time, if the surrogate decides to change their mind, you have no recourse,” said Simon Berney-Edwards. “Basically, that’s it. Your child is gone.”

Andrew Spearman, a British fertility and surrogacy lawyer, said the U.K. laws are “archaic” and that many of his clients turn to Canada for surrogacy.

“I think it gives an element of certainty. It gives the transparency, which we can’t offer always, and it gives a very clear structure,” he said in his London office.

Spearman said while U.K. surrogates and intended parents do draw up contracts outlining their agreement, the contracts aren’t legally binding as they are in Canada.

Neither country allows surrogates to be paid, other than to cover their expenses, which Spearman said helps British parents explain the process to English courts when they return home. They still need to get a “parental order” in the U.K. that makes them legal parents and gives their children U.K. citizenship.

The Berney-Edwards say they were also drawn to the altruistic nature of Canadian surrogacy because they wanted more than a “transactional” experience.

“We wanted someone that was prepared to be part of a family throughout the children growing up,” said Graeme Berney-Edwards.

After consulting a website that has profiles of women wanting to be surrogates, they found that in Meg Stone of Hamilton, Ont. Stone said that’s also what drew her to them.

“They mentioned that they wanted twins and I’m always up for a challenge,” she said. “And they also said they wanted lifelong friendship, which was also something I wanted.”

After a couple of false alarms that saw the dads dashing off to Canada early, Alexandra and Calder were born on June 25, 2017, in Hamilton, where they stayed for the first seven weeks of their lives.

Stone, who has two of her own children, has continued to watch the twins grow from afar, swapping messages and photos and even making the trip to England for the twins’ first birthday.

Her 12-year-old son, Jeffrey Seroski-Stone, said he’s proud of his mom for helping to create a family.

“I think it’s exciting how my mom ended up helping them out by giving them children, and I think we usually have a really good time, so I consider them to be like family to me,” he said.

Stone is pregnant with twins again, helping another same-sex family have children.

“I love being a mom and why wouldn’t I want to help somebody else do that, too?” she said.

She maintains she wouldn’t want to be paid for helping others have children, but there is a debate in Canada about whether paying surrogates should be decriminalized.

The current Canadian law came into force in 2004 and prohibits paying surrogates other than to reimburse them for certain medical and maternity costs.

The federal government is reviewing the legislation, including identifying categories for reimbursement and making them more clear. A Liberal MP tabled a private member’s bill that would decriminalize payments to surrogates but opponents say it amounts to commercializing a woman’s body.

Stone disagrees with the idea that a surrogate be given the chance to change her mind, as is set out in the current U.K. law.

“I never felt like they were mine to give away,” she said. “They were [with] me to watch and nurture until Simon and Graeme were able to.”

The Berney-Edwards say when it comes to surrogacy law, Canada has it right, but that doesn’t mean it was easy or cheap.

They won’t put a figure on it, but experts say they would have spent tens of thousands of dollars on Stone’s expenses, agency and legal fees, not to mention three trips back and forth to Canada.

“But it was worth it,” said Simon.

“Every single penny, cent, was worth it,” said Graeme.

Although none of their biological parents is Canadian, Alexandra and Calder are Canadian citizens because they were born in the country, and their fathers say it’s an important part of their heritage.

They look forward to the day they can explain to their children how they came into the world, how badly they were wanted and how much love was around them.

In fact, they’ve already started to do just that.

As the children begin to get ready for bed, the entire family sits on the living room floor sharing a story.

Simon reads aloud, “Before I settle down to sleep, I’ll blow a kiss goodnight, to make sure all of Canada will have sweet dreams tonight.”

Source: https://www.cbc.ca/news/world/u-k-canada-same-sex-surrogacy-twins-half-siblings-1.5069654

In 2016, a married gay couple in Canada became parents of twins using a surrogate mother. One father is a U.S. citizen, the other an Israeli citizen. The two fathers made a decision to contribute one embryo each to the surrogate mother so the twins would be biologically related to each of them. However, that turned out to be a determinative factor when the parents went to the U.S. Consulate in Toronto to register the twins for U.S. citizenship. Only one of the twins, Aidan, who was biologically related to his U.S. citizen father, was granted a U.S. passport. The family was devastated by this decision. When the Dvash-Banks family decided to move to California, the other twin, Ethan, had to enter as a visitor on a B visa. His B visa eventually expired, leaving him “undocumented.” [both are Canadian given  birthright citizenship]

With regard to children born in wedlock, section 301 of the Immigration and Nationality Act states that a “child born outside of the United States . . . acquires citizenship at birth if at the time of birth one parent is a foreign national and the other parent is a U.S. citizen; and the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.” Section 309, which applies to children born out of wedlock, requires, among other things, that “blood relationship between the child and the father is established by clear and convincing evidence.” The State Department, in its published policy, apparently reads the “blood relationship” clause into section 301 and would not budge on that policy for the Dvash-Bankses.

The Dvash-Bankses challenged the Department of State’s (DOS) decision with regard to Ethan in the U.S. District Court, Central District of California. In response to a motion for summary judgement, Judge John F. Walter declared that Ethan was a U.S. citizen and ordered DOS to issue him a U.S. passport as soon as possible. The order applied only to Ethan and did not prevent DOS from applying its “blood relationship” policy to other families. In post-summary judgement proceedings, the Dvash-Bankses argued, “The State Department’s refusal to approve [Ethan’s] applications . . . and its persistence in litigating this action full-bore to summary judgement, was manifestly unreasonable and not substantially justified.” The Judge awarded $1.3 in attorney’s fees and costs to the couple.

Ethan’s fathers believe that a straight couple who had used assistive reproductive technology would never have been asked to submit to a DNA test, as they were required to do by DOS. In a similar case, a lesbian couple of one U.S. citizen and one Italian citizen whose children were born in London brought a claim in the federal district court in D.C. – using the same lawyers who represented the Dvash-Banks family.

Source: Birthright Citizenship for Child of Same Sex Couple

President Trump’s Threats to Remove Birthright Citizenship Could Impact Surrogacies

As always, surrogacy creates some interesting citizenship policy challenges (see theglobeandmail.com/…/article-how-canada-became-an-international-surrogacy-destination). This perspective from a legal service provider, yet another element of the supporting birth tourism industry:

With Donald Trump’s recent threat to remove birthright citizenship rights, many international families may wonder how this could affect the nationality of a child born to immigrants. Below, family law Attorney Evie Jeang, founder of Ideal Legal Group, Inc., explains that without birthright citizenship, children born to immigrants and non-citizens will not be recognized as citizens of any country, and that by eliminating these laws, citizenship grants for children of international families will become unnecessarily complex, and the surrogacy market could take a hit.

Under the current laws, when a baby is born in the US to a gestational mother who is an American citizen, the baby is automatically extended American citizenship. The 14th Amendment of the United States provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In other words, children of international intended parents obtain US citizenship upon birth by a gestational parent in the US Among many legal, medical and ethical factors, birthright citizenship offers an appeal to international families without US citizenship looking to conceive through surrogacy. Thus, the popular commercial surrogacy market could take a hit without birthright citizenship attracting wealthy foreigners.

International family and divorce law firm, Ideal Legal Group Inc., frequently encounters the issue of birthright citizenship for foreign couples looking to conceive, particularly among their clientele base from mainland China.

Ideal Legal Group’s Chinese clientele face legal and cultural opposition to surrogacy in their country, and accordingly, many Chinese nationals come to the United States, where it is legal and ethical to employ a gestational surrogate to carry their baby. Through birthright citizenship, the child is eligible to receive US citizenship benefits, including education, social welfare and treatment in American medical facilities. A child with US citizenship is also eligible for dual residency in countries that recognize this concept.

Ideal Legal Group helps intended parents secure their birthright by ensuring parentage over their child in which they choose to be delivered by an American surrogate. Through their work with Surrogacy Concierge, Ideal Legal Group locates surrogates of specificity for international clientele, ranging in a variety of education and socioeconomic status.

Once a surrogate is selected, the legal process begins. The legal team drafts agreements on behalf of the intended parents to ensure that once the baby is born, the parental rights are transferred from the surrogate parent(s) to the intended parents. In the State of California, this is executed through the Family Code in which a parentage action confirms the birthrights of the intended parents.

The legal team drafts agreements between the intended parents and a gestational surrogate (and their spouse if applicable), memorializing through a legal agreement the medical stages of surrogacy. The intended parents are represented by one attorney and the gestational surrogate is represented by another attorney.

California surrogacy laws provide that a surrogacy contract must contain the date that the contract was entered into; the persons from which the gametes originated; the identity of the intended parent(s); and the process for any necessary pre-birth or parentage orders. Ideal Legal Group incorporates provisions that protect the intended parents’ birthrights.

Further, the legal team focuses on identifying the risks and responsibilities that each party is assuming, including but not limited to, surrogate compensation, what happens in the event of an unfortunate miscarriage, and protocol if the surrogate has multiple children rather than the one child which was contracted. The surrogacy contract is a map for the process.

Ideal Legal Group also handles the courtroom work. Pre-birth parentage orders are needed to finalize the intended parents’ legal parental rights. No actual court hearing is needed; however, pre-birth parentage orders are filed in advance of when the baby is born, and the Judge signs off on the transfer of parental rights from the surrogate to the intended parents.

Source: President Trump’s Threats to Remove Birthright Citizenship Could Impact Surrogacies

Toronto Sun Editorial: Birth tourism growing issue in Canada (surrogacy)

The earlier op-ed in the Globe gets traction in the Sun (How Canada became an international surrogacy destination [another form of birth tourism]:

There were 102 babies born to surrogate moms in British Columbia in 2016 and 2017.

Of those, 45 were babies for parents from other countries.

Parents who travelled here to have their child delivered in Canada, who before they left picked up a Canadian citizenship for their child and who left Canadian taxpayers with the bills for the pregnancy of their surrogate mom as well as costs for the delivery and postnatal care of their newborn.

We know this thanks to reporting by freelance Globe and Mail writer Alison Motluk, who earlier this month wrote about Canada increasingly becoming a destination for international surrogacy.

It’s understandable that foreign parents, especially those who may need to turn to surrogacy to have a child, would find Canada and a bonus Canadian citizenship for their child attractive.

Surrogacy is prohibited in many countries and few countries permit surrogacy for non-residents, let alone pay for costs associated with the surrogate mom’s pregnancy, delivery and postnatal care costs.

Without doubt, some of those parents are likely desperate to have children and may have few options. On compassionate grounds, their desire to seek surrogacy here may be compelling.

However, an open-door policy for birth tourism is also troubling.

Why is citizenship being handed out to the children of birth tourists as a going away prize?

Citizenship is a privilege, something often earned at great cost and difficulty for the many millions of Canadians who immigrated to this country and made it their home.

Why on earth should Canadian taxpayers foot the hospital bills for foreign couples who want to have their babies in this country – $3,000 to $6,000 for uneventful births to potentially more than $90,000 for premature babies with complications?

Is birth tourism something we should be encouraging?

And although B.C. tracks residency data on parents, other provinces don’t.

So we’re not even sure of the scope of birth tourism in this country, let alone its costs.

As Brian Lilley wrote in the Sun on this issue, Real Women of Canada wants Ottawa to close loopholes that permit taxpayer subsidization for foreign surrogacy – something many European countries have already done.

Without such change, there’s little doubt Canada increasingly will become a destination for birth tourism.

Source: EDITORIAL: Birth tourism growing issue in Canada

And the Lilley piece that prompted the editorial:

Call it birth tourism of another kind.

We’ve all heard stories about mothers arriving in Canadian cities just in time to give birth so their child can get Canadian citizenship.

But what about foreign parents having a kid in Canada via surrogacy?

It is happening and it is growing.

In 2016 and 2017 there were 102 babies born to surrogate mothers in British Columbia. A shocking 45 of those babies were born to parents from outside of the country.

Here is the crazy part, you are paying for it and the baby that is quickly whisked off to a foreign land is granted automatic Canadian citizenship.

The numbers, first reported by freelance journalist Alison Motluk in the Globe and Mail, show what experts believe to be a growing issue in Canada.

While surrogacy is tightly regulated in Canada, we are one of a handful of countries that allow foreign parents to find a surrogate within our borders. We also have “free” health care, meaning the “intended parents” of the child born by surrogacy aren’t on the hook for the bill.

Estimates for the cost of an uneventful birth range from $3,000 to $6,000, not including any prenatal or postnatal care. With 45 births in B.C. to foreign parents, that means taxpayers were out $135,000 to $270,000 in health care costs for the birth alone.

If there are complications those costs skyrocket. Estimates say care for a premature baby could top $90,000.

All of that paid for by Canadian taxpayers for a baby that will be shuffled home to a foreign country as soon as all the paperwork is complete.

Those numbers I’ve given you are for B.C. alone. Other provinces either do not keep or will not release stats on the number of surrogate babies for foreign parents.

Whatever the number in other countries, expect this to grow in Canada.

As other countries crackdown on foreign surrogate parents or don’t allow the procedure for non-residents, Canada has no such rules. We also offer complete health-care coverage for the Canadian surrogate and citizenship for the child upon birth.

That means a Canadian passport for life and easier entry, maybe even sponsorship of the parents later in life.

Other countries also make you pay to use their facilities.

One American company offering surrogacy charges a low of US$39,400 in Mexico to a high of US$64,900 for the “Guaranteed Baby” program in Ukraine.

With prices like that, no wonder Canada is becoming a more attractive destination for this kind of birth tourism.

The group Real Women of Canada, which is outright opposed to surrogacy, says the federal government should at least be looking to close this loophole allowing couples from other countries to have their child’s birth subsidized by Canadian taxpayers.

In a submission to Health Canada, which is looking at modernizing rules and regulations around surrogacy, the group calls for non-Canadians to be barred from using Canada as a surrogacy destination, something many European countries already do.

Any discussion of such a ban would be a sticky one for the government, in fact any discussion of the issue is sticky.

Emotions will run high, claims of targeting specific groups will be made.

Here’s an idea though, let’s get better information on this.

It’s understandable that foreign parents may want to give their child the privilege and advantages of a Canadian passport. That’s why we have an immigration system.

But let’s find out from each of the provinces how often this is happening.

Are Canadians paying for the hospital care for babies born to foreign parents?

Are we paying for expensive neonatal care or even IVF treatments so foreign couples can have a child?

Are we handing out citizenship to children that will not live here? And if so, how often is this happening?

This looks like the type of thing  people didn’t think of when the current regulations were devised.

More than a decade in, maybe it’s time we had some honest conversations about what we want to allow, who is going to pay for it and who should actually get a Canadian passport.

Source: LILLEY: Canadians paying bills for birth tourism

How Canada became an international surrogacy destination [another form of birth tourism]

Just as I am working on my article on birth tourism, another example of “reproductive tourism” emerges.

The same issues larger apply in terms of abuse of birthright citizenship.

In addition, given that Canadian surrogate mothers use Canadian healthcare, there is an effective subsidy to foreign parents engaging a Canadian surrogate. Not right (and appears Canada is one of the few countries that allows intended parents living outside the country.

Hard to understand the rationale for continuing this other form of birth tourism:

Here’s an arresting statistic: Almost half of the babies born to Canadian surrogates in the province of British Columbia in 2016 and 2017 were for intended parents who lived outside the country. That’s 45 of the 102 babies born to surrogates there – 44 per cent.

What’s the national tally on such outbound babies? We don’t know. Rather, we aren’t told. The number could presumably be calculated, since individual physicians carry out the procedures and bill for them, and provinces issue birth certificates. But the information is not publicly available. Then again, we should hardly be surprised: In Canada, we don’t even know the total number of babies born to surrogates for any parent, Canadian or otherwise. I and others have been asking around for some time now.

Those B.C. numbers come to us thanks to the hard work of Pamela White, at the Kent Law School in Britain, who had to put in an access to information request with the B.C. government. She tried the province of Ontario, too, but they said they don’t collect data on residency. In the United States, such information is collected by law and published by the Centers for Disease Control and Prevention.

Prof. White, a former Statistics Canada director and data analyst, argues that Canadians deserve that level of transparency, too. She is absolutely right. Without real data, available for scrutiny, how can we make informed public policy decisions? We can’t.

Anecdotal reports and incomplete data suggest that the number of intended parents (IPs) from outside Canada has been growing in recent years. At the annual meeting of the Canadian Fertility & Andrology Society (CFAS) last month, Karen Busby, a professor in the faculty of law at the University of Manitoba, who co-authored a forthcoming paper on the topic with Prof. White, discussed why Canada is becoming an international surrogacy magnet and whether it is desirable.

The backdrop, Prof. Busby says, is that worldwide demand is huge. Many people want to be parents and can’t do so without surrogacy, but they live in countries where surrogacy is either prohibited entirely, or prohibited for them. China, Japan and many European and predominantly Muslim countries have restrictions, she says. People in such places who decide to pursue surrogacy must look beyond their own borders.

Coupled with this growing demand is shrinking supply. In the last few years, India, Nepal, Thailand and Mexico – former international surrogacy hotspots – have closed their doors to non-residents.

So why Canada? For one thing, Prof. Busby says, Canada is one of the few jurisdictions left in the world that both allows surrogacy and allows foreign participation in it. Countries such as Britain, South Africa and Israel, she says, permit surrogacy, but not for foreigners. The only other places that allow foreigners to access surrogacy within their borders, apart from a couple of completely unregulated jurisdictions, are Greece, Ukraine, Russia, Georgia and a few U.S. states.

For a number of reasons, Canada stacks up well against these others. Russia and Ukraine, for instance, only allow married heterosexual couples to participate. Canada, by contrast, does not allow discrimination on the basis of marital status or sexual orientation, Prof. Busby says.

Canada is also fairly efficient about granting legal parental rights. It varies by province, but generally speaking, IPs can be declared legal parents without a lot of hassle in just a few days, and they can be issued a birth certificate within weeks. Also, any child born in Canada has the right to citizenship, so a passport can be issued, and in short order, the families can head home and start their new lives.

Financially, Canada also compares well. Women in Canada enjoy high quality, publicly funded health care throughout the pregnancy, during the delivery and after the birth. This is as true for a woman carrying a baby for someone from France or China as it is for a woman carrying a baby for herself. Our neonatal care is also top-notch – and also publicly funded. Another perk, Prof. Busby says, is that if a Canadian surrogate has a job, then she may also qualify for employment insurance benefits following birth – to a maximum of $6,500.

Here’s another interesting twist. In Canada, it’s illegal – a criminal offence, according to the Assisted Human Reproduction Act – to pay a woman to carry a baby for you, or to pay someone else to arrange for her to do so. Since the law first passed in 2004, this prohibition has caused enormous hand-wringing for Canadian would-be parents looking to form their families with the help of a surrogate. They rightly fear that they could be prosecuted for paying a surrogate, and the penalty is steep: up to 10 years in prison and $500,000 in fines. The prohibition has reportedly driven some Canadian families to leave the country to seek surrogates elsewhere.

Ironically, this prohibition, which was designed to deter commercial surrogacy, may actually be stimulating it – and may favour foreign IPs over domestic ones. Domestic IPs may be reluctant to offer money or will only offer it under the table, but because the law is not applied to acts committed outside the country, Prof. Busby says, foreign IPs can offer money openly, so long as it changes hands somewhere else. It’s conceivable that, given the choice between being paid and not being paid, Canadian surrogates – who are legally allowed to accept the money – may opt to be paid. So foreign IPs may actually be more attractive to Canadian surrogates than domestic IPs. (There’s no data on that, of course, since there’s no data.)

It is true that foreign IPs coming to Canada will still be subject to our other prohibitions, such as paying for local egg or sperm donations or performing sex selection. But, as Prof. Busby points out, most Canadians live near the U.S. border and have easy access to the services offered there. This ability to enjoy the best of both systems only adds to Canada’s appeal.

All of these factors help to explain why Canada has become a go-to place for surrogacy. I’ll add one more that Prof. Busby did not explicitly mention: There are Canadian doctors, lawyers and agencies who actively recruit IPs from around the world. If foreign parents weren’t already aware of Canada’s considerable merits, representatives of the industry are more than happy to point them out. In fact, the newly minted president of the CFAS himself, alongside the CEO of the country’s top surrogacy agency, was recently in London, promoting Canada as a premier surrogacy destination.

And they are right: For all of the above reasons, Canada is a great place to do surrogacy. Loads of people already want to come here and we can only expect that number will grow.

Not everything about this picture is rosy, however. A big question is whether Canadians need to think about recovering medical costs. Pregnancy care, even for an uneventful pregnancy, costs money. So does birth. The average uncomplicated birth in Canada rings in at between $3,000 and $6,000, depending on whether it’s a vaginal or surgical delivery. Complications can increase that figure considerably. Neonatal care can also be pricey. For instance, according to the Canadian Institute of Health Information, care for a baby born at 29 weeks weighing less than kilogram costs an average of $91,946. One baby.

“I am pretty sure that if you asked the average Canadian whether or not the Canadian health-care system should pay for any of the health-care costs incurred in order to produce a child for a non-resident IP, the answer would be no,” Prof. Busby told the CFAS meeting. “In fact, I think it would be an emphatic no.” I suspect she’s right.

As far as Prof. Busby is aware, no province has put in place laws or policies to recover the cost of surrogate pregnancy care from foreign IPs. (A few Ontario hospitals have started charging for infant care, if the infants are for out-of-province parents.) Prof. Busby says governments could consider measures such as asking IPs for money up front or not issuing a birth certificate or passport until the bill is settled.

That’s a lot of work. It would involve co-ordination across departments and even, in some scenarios, levels of government. Another option, she says, would be to follow the lead of other countries and create residency restrictions, stipulating that only people who live in Canada can work with a surrogate here. That option would, in one fell swoop, alleviate the shortage of surrogates available to work with Canadians and eliminate the cost-recovery conundrum.

That would be a tidy solution, and, all things considered, maybe the most workable one. The cost-recovery issue is challenging. Access to surrogates by Canadians is challenging, too. There are other problems. Our country is struggling under a 14-year-old law that still hasn’t rolled out the meat of its regulatory details. We are woefully lacking in transparency about surrogacy – and assisted reproduction in general. Finally, although preliminary findings are reassuring, we have not yet done nearly enough research to establish that Canadian women who act as surrogates are not exploited.

I am not hopeful, given Canada’s track record in this sphere, that we will crack these tough problems any time soon, or ever. But let’s imagine we did – no cost to the Canadian public, adequate numbers of surrogates to work with Canadian families, effective laws for and public scrutiny of the process and confidence that women were treated fairly. Then, it seems to me, Canada would be an excellent place for international surrogacy. Surely the ideal is for surrogates and babies to have quality medical care, for IPs to be free from discrimination, for parentage issues to be resolved quickly.

If we did somehow get our house in order, I’d be the first to ask: If you believe that surrogacy is a legitimate way of achieving parenthood, what would be the argument against welcoming it here?

Source: How Canada became an international surrogacy destination: Alison Motluck

Foreign buyers flocking to Canada to find surrogate mothers after Asian countries crack down

Largely anecdotal rather than hard numbers, but nevertheless another aspect of birth tourism. Ironic that as developing countries crack down, Canada becomes a preferred location:

As doors are closed in some Asian countries, foreigners are flocking to Canada to make use of its surrogate mothers — and the taxpayer-financed health care system that looks after them, consultants and lawyers say.

One agency that helps “intended parents” work with surrogates says it has been “overwhelmed” with a 10-fold increase in business over the last few months.

Owner Sally Rhoads-Heinrich cites the closing recently of international surrogacy arrangements in Thailand, Nepal and — for same-sex couples — India.

Some parents are even having embryos they had stored in such countries shipped to Canada to restart the process here, said another consultant.

“I’m averaging about 600 emails a day,” said Rhoads-Heinrich. “I start usually at about 6:30 in the morning and I’m going until 11:30 at night. I can’t keep on top of it right now so I’ve had to hire more people.”

She used to sign up 20-40 clients a year, but now has more than 200, part of an industry estimated to be worth billions worldwide.

Rhoads-Heinrich worries, though, that people from overseas are essentially taking advantage of the fact Canadian surrogates are covered by medicare, an advantage promoted by at least one of her competitors.

“I don’t like Canada being seen as just a free-for-all for people to come here and use our health-care system,” she said. “We’re being flooded and I’m not seeing Canadian couples being helped. I’m seeing a lot of international couples being helped.”

The demand comes largely from other developed countries with more restrictive laws. Some, like France and Germany, ban surrogacy outright, while others, such as Israel, do not allow it for same-sex couples or single people.

Canadian law permits the practice, but prohibits commercial fees, a system on the verge of being tightened by contentious new rules.

Source: Foreign buyers flocking to Canada to find surrogate mothers after Asian countries crack down

Baby Gammy, whose parents left him with Thai surrogate mom, may still be eligible for Australian citizenship

The complications arising from surrogacy in the case of the Australian couple who didn’t accept their child with Down’s syndrome. Apart from the broader moral issues involved, the citizenship aspects are of interest:

Australian Immigration Minister Scott Morrison told Sydney Radio 2GB on Monday that Pattaramon “is an absolute hero” and “a saint,” adding that the law surrounding the case “is very, very murky.”

“We are taking a close look at what can be done here, but I wouldn’t want to raise any false hopes or expectations,” Morrison said. “We are dealing with something that has happened in another country’s jurisdiction.”

Morrison’s office later said in a statement that “the child may be eligible for Australian citizenship,” without elaborating.

Australian citizens are entitled to free health care in Australia.

In Sri Racha on Sunday, Pattaramon said that she was not angry with the biological parents for leaving Gammy behind, and that she hoped they would take care of the boy’s twin sister they took with them.

“I’ve never felt angry at them or hated them. I’m always willing to forgive them,” Pattaramon told The Associated Press. “I want to see that they love the baby girl as much as my family loves Gammy. I want her to be well taken care of.”Pattaramon was promised 300,000 baht $9,300 by a surrogacy agency in Bangkok, Thailand’s capital, to be a surrogate for the Australian couple, but she has not been fully paid since the children were born last December.

If I recall correctly, for a surrogate baby born abroad to be eligible for Canadian citizenship, the genetic material from one of the parents must be Canadian (see Couple fights federal surrogacy policy to bring their boy back to Canada).

Baby Gammy, whose parents left him with Thai surrogate mom, may still be eligible for Australian citizenship.