Karen Busby suggests that the safety, security and well-being of surrogate mothers, the children they bear and the intended parents may be better protected through regulatory regimes than criminal prohibitions.

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A British Columbia couple (Greg and Elaine Smith) have learned, the hard way, that there are many perils to international surrogacy. After signing a comprehensive contract with a Mexican clinic, the Smiths thought they had covered all the bases. But when their twins were born prematurely and could not breathe on their own, the couple read the fine print. The clinic was not responsible for intensive care medical costs. British Columbia (like most provincial governments) does not pay for offshore care and so the couple faced crippling medical bills.

The couple also recently learned that they were not legally recognized as the twin’s parents. Almost everywhere in the world, the woman who gives birth is, at law, recognized as the child’s parent unless and until a court order changes that status. Most countries prohibit surrogacy and therefore forbid judicial authorities from giving intended parents the legal status of parent. Countries that do permit surrogacy often have complicated parentage rules— often requiring an independent investigation into the circumstances of the birth before a birth certificate can be issued in the names of the intended parents. States have a legitimate interest in ensuring that children born within their borders are not subject to baby selling, or that unscrupulous parties are not trying to avoid local adoption rules.

Gustav Klimt, Hope II (1907)

In addition to a birth certificate, children born of international surrogacy also require a passport to enter the intended parents’ country of residence. The Canadian government will not issue a passport for children born to surrogate mothers offshore, until it is satisfied that one of the parents (who must be a Canadian citizen) has a genetic link to the child, and it has seen appropriate documentation from the clinic. If DNA testing is required, it could be several weeks before a passport is issued.

Why do Canadians seek surrogates in other countries? In Canada it is a criminal offense to pay a woman for the time and trouble of being a surrogate mother. And, at the present time, the law is unclear about whether any of the surrogate mother’s expenses can be paid. Some argue that Canadian law should have offshore reach and prohibit Canadians from engaging in commercial surrogacy elsewhere. This appears to be a minority view, however, as even the Canadian government has special rules to facilitate issuing passports to children intended for Canadian parents who are born to surrogate mothers in another country.

Numerous studies on commercial surrogacy in the United States and Britain consistently demonstrate that surrogate mothers are happy with the arrangements – provided certain preconditions are in place. For example, potential surrogates should be screened to ensure that their motives are a mix of financial and altruistic reasons. As well, they should have finished having their own children and have enjoyed being pregnant. Another key to success is recognition by healthcare providers of the fact that the surrogate mother is the patient, not the intended parents. For example, decisions about how many embryos will be implanted, whether to participate in prenatal screening, and the manner of delivery are decisions that should be made by the surrogate mother with input from her healthcare providers. Further, information about such decisions should only be shared with the intended parents with the explicit consent of the surrogate mother.

In contrast, the few studies done in India and anecdotes from Thailand – both popular surrogacy destinations – establish that women in these countries are exploited in numerous ways. Notably, surrogate mothers often are not paid, are forced to live in clinic-run dorms, are scheduled for caesarean sections for the convenience of intended parents, and do not receive post-natal care. Recently, both the Indian and Thai governments have taken steps to restrict or prohibit access to international surrogacy within their borders. But as some destinations become more restrictive other destinations, such as Mexico and some African countries, begin to open up. Already, horror stories are emerging from Mexico about poor screening for mental stability. Financial and psychological exploitation are also of concern.

Given the very real potential for the exploitation of surrogate mothers in other countries, perhaps it is time for Canadian law to stop driving Canadians to seek surrogacy elsewhere. Canadian women want to be surrogates and want to be paid for it. We should re-open the debate about the ethics of commercial surrogacy. The safety, security and well-being of surrogate mothers, the children they bear and the intended parents may be better protected through regulatory regimes than criminal prohibitions.

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Karen Busby is Professor of Law and Director of the Centre for Human Rights Research at the University of Manitoba. @karenbusby2