New Surrogacy Regulations

On June 26, 2019 Health Canada released a draft Guidance Document with long-awaited regulations on what expenses a surrogate may be reimbursed for. Scheduled to come into force June 9, 2020, they will be likely be welcome news for those practising in the fertility area. The list of eligible expenses is not exhaustive — the Guidance Document says that things absent from the list are “not automatically prohibited,” and whether or not a specific expenditure is allowed “depends on the particular circumstances.”

However, says the Guidance Document, care must be taken by persons making reimbursements to ensure that they can demonstrate that the reimbursement is not a “disguised form of payment.” Any expenditure must be “in relation” to the surrogacy; receipts must be provided; a signed declaration must be completed; and, where applicable (e.g., if a person reimburses a surrogate for loss of work-related income during the pregnancy), a certification is required from a qualified medical practitioner that continuing to work may pose a risk to her health or that of the embryo or fetus.

The list of expenditures, which has expanded from the previous draft regulations released last October — the new additions are in red below — is as follows:

(a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

(b) expenditures for the care of dependants or pets;

(c) expenditures for counselling services;

(d) expenditures for legal services and disbursements;

(e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

(f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the post-partum period;

(g) expenditures for obtaining a written recommendation referred to in paragraph (f);

(h) expenditures for the services of a midwife or doula;

(i) expenditures for groceries;

(j) expenditures for maternity clothes;

(k) expenditures for telecommunications;

(l) expenditures for prenatal exercise;

(m) expenditures related to the delivery;

(n) expenditures for health, disability, travel, or life insurance coverage; and

(o) expenditures for obtaining or confirming medical or other records.

Category (f) above is “intentionally broad,” as Health Canada recognizes that individual circumstances will vary. For example, if supported by the facts, this category could permit a surrogate to be reimbursed for the cost of household maintenance (e.g. snow removal, cleaning) to support the authorized professional’s (AP) written recommendation of bedrest or avoiding strenuous activity. Likewise, for example, if the AP recommends alternative or complementary health care services (e.g. chiropractor, massage therapy) to support the surrogate’s pregnancy, expenditures for such services may be reimbursed. This category was also designed in recognition that a surrogate’s primary health care provider may not always be a physician. For example, if a surrogate is under the care of a midwife in a province which authorizes such care, the midwife can provide or recommend in writing products or services that would protect or promote the health of the surrogate and the baby.

While the Assisted Human Reproduction Act specifically provides for loss of work related income to a surrogate during the pregnancy, provided a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the fetus/embryo, neither the Act nor the regulations specifically include loss of work related income after the pregnancy (i.e., maternity leave, wage top-up), despite numerous requests from those of us who practice in the area that this is a basic expense that should be clearly set out in the legislation.

Having said this, the Guidance Document does state that Health Canada is of the view that surrogates may be reimbursed for their loss of work-related income after the pregnancy (maternity leave, wage top-up), provided they obtain the required written certification from a qualified medical professional and provided the reimbursement “is made in accordance with the regulations.” Since this expense is not included in the regulations, it seems the reference to them in this particular context is more about maternity leave wage loss reimbursements following the same criteria and process that are set out in the regulations for loss of work related income during the pregnancy, specified as follows:

A declaration dated and signed by the surrogate mother that sets out:

  1. her name and address,
  2. the start and end dates of the period when she did not work for a reason certified by a qualified medical practitioner under paragraph 12(3)(a) of the Act,
  3. the amount requested for reimbursement,
  4. a statement indicating that she has not received compensation from any other source, in full or in part, for the loss of income, and
  5. a statement indicating that all of the information submitted in the declaration is accurate and complete to the best of her knowledge

The Guidance Document goes on to state, with respect to maternity leave wage top-up: “such an interpretation gives primacy to the health and safety of the surrogate and the child, which is consistent with key principles underpinning the Assisted Human Reproduction Act.”

The Guidance Document also gives some illustrations of what not to do, for example: paying the grocery bill for a surrogate’s entire family for the duration of the pregnancy, or paying a surrogate’s entire telecommunications bill, including Netflix, cable, high speed internet, etc., instead of just the expenses “directly related to the surrogacy.”

Reimbursement for the use of an automobile is calculated on the basis of the distance driven and the applicable automobile allowance rate posted on the Canada Revenue Agency’s website for the year in which the transport or transportation occurred.

Records of all documents related to all reimbursements must be kept for a period of six years after the date of the reimbursement, in case Health Canada asks to see them.

The Guidance Document also deals with reimbursements for gamete donors, and for the maintenance or transportation of an in vitro embryo, but the general principles are the same: there is no obligation to reimburse; reimbursement must not involve monetary gain by involved parties; it must not be a disguised form of payment or purchase; and the payment of “anticipated expenses” or an “unaccountable allowance” is not allowed.

Paying a fee to a surrogate, or an ova donor, as opposed to reimbursing, carries a maximum penalty of a $500,000 fine and/or ten years in prison. These new regulations and accompanying guidance document will hopefully help to clarify what can, and what cannot, be reimbursed, and help to calm the troubled waters of uncertainty that have been upon us since 2004!

For advice on family law issues and fertility law issues, contact Shirley Levitan.

2019-08-27T15:55:14+00:00July 16th, 2019|Blog, Fertility Law|
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