Having a baby via surrogate in Canada: The ups, the downs and the unexpected red tape
I never thought I'd be someone who had a baby via gestational surrogate — until I was diagnosed with breast cancer.
When I learned that actress Olivia Munn and her husband, comedian John Mulaney, had recently welcomed their second child via gestational surrogate it made me smile. Our stories are similar; like Munn, my first year of motherhood was upended by a cancer diagnosis — and it took a special surrogate to help make my dreams of having more children come true.
I first noticed the lump in my breast when my son was nine months old. What I had hoped was a plugged milk duct turned out to be stage 1 breast cancer. A double mastectomy, chemical menopause and hormone therapy followed. A few months later, I celebrated my son’s first birthday a few days after my double mastectomy, unable to hold him as I was still healing.
I was relieved when I found out the cancer hadn’t spread — but my husband and I were dealt another blow when it was clear that because of my type of breast cancer, it wouldn’t be safe for me to carry another baby.
My sister had been my rock through treatment and I knew I wanted my son to have a sibling of his own one day. We could adopt — but there also might be another way.
Years before we had our first child, my husband and I decided to freeze our embryos. We thought that if we were unable to get pregnant on our own, we could investigate using a gestational surrogate. We never anticipated we would need the embryos after cancer — but we were grateful we had options.
My husband and I were skeptical. Who would do this for us if not for the money?Sarah DiMuro
I grew up in the United States where surrogacy can potentially cost upwards of $100,000. In Canada, it’s illegal to pay a surrogate under the Assisted Human Reproduction Act; only altruistic surrogacy is permitted. However it’s legal to reimburse a surrogate for out-of-pocket expenses like lost wages, child care, groceries and more. My husband and I were skeptical. Who would do this for us if not for the money?
After doing some research, we began working with a surrogacy agency, to help pair us, the intended parents with a potential surrogate. But the people we were “matched” with were not a fit — and the agency expected us to pay thousands of dollars once a match was made. So, I turned to social media.
Desperately seeking surrogate
Within minutes of posting in two Facebook groups for intended parents searching for surrogates, I connected with several women looking to help couples grow their families as well as former surrogates and intended parents who offered guidance. I had done a vlog with Rethink Breast Cancer documenting my breast cancer journey and one of the members of the community sent it to my future surrogate.
After a few weeks of texting back and forth, I hopped on a plane from Toronto to Ottawa. We spent an entire day at the spa, lounging and laughing. She felt like someone I had known my entire life.
We met in May 2019 and by August of the same year she was pregnant with our baby after the first embryo transfer.
My surrogate, my best friend
I flew to see her for all the ultrasounds, staying at her home and getting to know her amazing kids and supportive husband. When there was an issue after the five month anatomy scan, I travelled the day after Christmas so we could go to the doctor together— and we celebrated the good news that all was well with her family. I even rented an Airbnb nearby for the time leading up to her birth, just case she went into early labour. But in March 2020 a global pandemic suddenly threw a major wrench into our plans.
Surrogacy during the pandemic was no picnic
Our surrogate lived in Quebec, just a few kilometres from the Ontario border, and felt more comfortable giving birth there. Despite close proximity to the border, restrictions on cross-border travel proved to be an issue — and spending the month in a rental close to our surrogate was no longer an option.
Our lawyers warned us that there was no guarantee we would be allowed across the border at all — even for the birth. I had to pay $250 for a letter from the fertility clinic in Ontario certifying that the embryo implanted and thus the baby she was carrying was biologically related to us. We also had to bring a copy of the fully executed surrogacy contract from our lawyer, who also warned us that due to COVID restrictions, we may not be able to enter the hospital and take custody of the baby once its delivered.
Crossing the border wasn't the only obstacle we faced. Prior to a March 2024 reform, a child born via surrogacy in Quebec was considered custody of the surrogate. This meant that only my husband would be allowed in the delivery room, as the surrogate was considered the biological mother.
When we got to Quebec we were pleasantly surprised with no issues at the border and the nurses greeting us warmly, and were up to speed on our entire story. While we were hopeful that we could be present for the entire labour, our surrogate needed an emergency C-section. COVID restrictions took precedence once again and we were restricted from being in the operating room and met our baby a few hours after they were born.
We had to adopt our own baby
Sara Cohen, a fertility lawyer based in Toronto, says there's been a significant increase in surrogacy in Canada in recent years. Cohen tells Yahoo Canada that aside from commercialized surrogacy being legal in the U.S., there are are two important differences between surrogacy in the U.S. vs. Canada.
Firstly, Canadian surrogates have access to provincial health care coverage for their pregnancy. In the U.S., intended parents need to consider the costs of insurance premiums for both pregnancy and delivery.
Secondly, unlike in Canada, some U.S. states have pre-birth orders, agreements between the surrogate and intended parents signed before the birth of the child declaring the intended parents the legal parents of the child. The process to have legal custody of my child was more complex.
In addition to my lawyer in Ontario, I had to retain a lawyer in Quebec to be registered as the biological mother of my child. It was unsettling that after everything I'd gone through, I also had to go through an extensive adoption process.
As of March 2024, a new process was implemented that still complicates matters. Any surrogacy agreements signed on or after March 6, 2024 will recognize the intended parents as the legal parents if there is a "notarized act from both the surrogate and the intended parents so long as the surrogate and intended parents be domiciled in Quebec for at least one year prior to the signature of the surrogacy agreement."
It was unsettling that after everything I'd gone through, I also had to go through an extensive adoption process in Quebec to be recognized as my baby's motherSarah DiMuro
Cohen says that despite the recently updated laws in Quebec surrounding surrogacy, challenges remain and she “strongly advises people not to engage in surrogacy in the province of Quebec.” In fact she says that people who are surrogates in Quebec often deliver across the border in Ontario. Ontario’s All Families Are Equal Act has simplified the process for intended parents, allowing up to four parent’s names to be listed on the birth registration, thus avoiding a complicated adoption process.
Surrogacy in Canada
Ontario and British Columbia are considered surrogate-friendly provinces, along with Alberta — but Alberta has a smaller pool of surrogates, and therefore longer wait times.
"New Brunswick is probably the worst of the rest of the provinces in the sense that it doesn't have any on point legislation — but nothing is nearly as difficult as Quebec," Cohen says.
Still, Cohen says, New Brunswick needs to catch up to the other provinces. Earlier this year she told Global News: “New Brunswick is lagging because there actually is no legislation around surrogacy or children who are conceived through the use of third-party reproduction."
Grateful for our family
Despite the red tape, I'm grateful for Canadian surrogacy — but that doesn’t mean surrogacy in Canada is a bargain. Lawyers fees, travel expenses, paid time off from work for our surrogate, all those items can really add up. But when you find a surrogate you connect with and trust, none of that matters.
My surrogate is forever part of my family, and even one of the godmothers of the baby she delivered. Having breast cancer was not part of my life plan, but if it meant I got to know this amazing woman and her incredible family, in some way, it was all worth it.
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