This report discusses the ethics of surrogacy with a view to improving public policy. We analyze Canada’s current regulatory regime surrounding surrogacy, identify its shortcomings, and offer policy recommendations aimed at safeguarding the dignity and wellbeing of women and children.
Between 2020 and 2021, a couple from the country of Georgia used surrogates to have 21 biological children over the course of 19 months.[1] Georgia is one of the few countries in Europe that permits both commercial and altruistic surrogacy.[2] Although the couple is biologically related to their children, this family arrangement is one that would be impossible to create through natural means. Despite the assistance of 16 nannies, it is also hard to believe that begetting and raising children in this way is in the best interest of the children or society.[3] Surrogacy is often seen as a way to overcome infertility. However, it raises serious legal and ethical questions about what it means to be a parent, the relationship between a woman and the child she is carrying, and the impact of the practice on both women and children.
| Altruistic Surrogacy: a surrogate ‘volunteers’ to carry a baby without compensation. Permitted in Canada in line with the activities set out in the Assisted Human Reproduction Act (AHRA). Commercial Surrogacy: a surrogate is paid for carrying a baby to term. Prohibited in Canada. Traditional Surrogacy: the surrogate is inseminated with sperm from the commissioning party or a donor but uses her own egg, resulting in a child genetically related to her. Gestational Surrogacy: an embryo is created, using the sperm and ova of the intended parents or donors, and implanted in a surrogate. |
International human rights documents emphasize the special protections that women and children need and deserve. The Universal Declaration of Human Rights states that “Motherhood and childhood are entitled to special care and assistance.”[4] The United Nations Convention on the Rights of the Child also clarifies that “the child … needs special safeguards and care, including appropriate legal protection, before as well as after birth.”[5] The Convention further states that a child has the right to know his or her parents and be cared for by them.[6] Canada has a duty to apply these principles to the issue of surrogacy.[7]
Ethical Issues
Surrogacy requires fracturing and reordering natural relationships, subjecting the interests of the child to the wishes of adults, and using women as a means to an end. Becoming a parent is a beautiful thing, but not every means of doing so is ethical.[8]
Acting in the best interests of a child necessitates a commitment to the principle that children are not products to be obtained through commercial transactions or contracts. They ought not to be the creation of ‘pre-conception agreements’ or ‘surrogacy agreements,’ subject to the desires of ‘intended parents.’ Children are not entitlements to be demanded or procured in any way practicable. They are gifts to be received from God.[9] God’s design directs that human procreation ought to take place within a committed heterosexual marriage. A mother’s bond to her children is meant to be both biological and relational. Involving a third party as a surrogate mother crosses this boundary and severs motherhood from the associated relational love and caregiving. Instead, it compels a woman to bear a child without providing for that child after birth.[10]
Surrogacy fractures motherhood into three categories: genetic mothers, birth mothers, and social or ‘intended’ mothers.[11] It divides the biological capabilities of the surrogate from her unique personhood and motherhood, undermining her dignity.[12]
The birth mother in family law is presumed to be the legal parent while the child is in her womb, but surrogacy removes legal certainty as it divides motherhood into multiple categories. Through surrogacy, the child develops a deep bond with a woman who is typically not his biological mother.[13] And the surrogate mother develops a bond with a child who is not genetically her child, a child she is expected to give up after birth. As a result, “surrogacy deconstructs the integral personhood of the human being and the foundations of any legal system based on the concept of parentage and the family.”[14]
Adoption, too, places children with non-biological parents. At times, this is necessary because a child has lost his biological parents, or they are unable to care for him. The adoptive family is designed to provide for the child what the child has lost through unfortunate circumstances, namely, the child’s natural family. Unlike adoption, surrogacy arrangements separate the child from his birth mother (and often his biological mother) by design.[15]
Surrogacy arrangements put the commissioning parents’ interests ahead of the interests of the child. The right of the child to understand his or her own identity is shattered through surrogacy and deep relational bonds are deliberately broken.[16] Likewise, legal certainty about a child’s mother and father is absent, often resulting in a legal battle over the child or, in some cases, the child’s abandonment.[17]
Even if surrogacy takes place in a ‘best-case scenario,’ where there is no exploitation of the surrogate mother and no sale of children, a healthy pregnancy, and a happy handoff to the ‘intended parents,’ the process nevertheless intentionally inflicts a primal woundon the child – children still lose the only person they have ever known at the time of birth: their surrogate mother.[18] One study suggests that a baby who is taken from his mother for even a brief period is at greater risk of a number of neuropsychiatric disorders due to this traumatic event.[19] Other studies suggest that children’s temperament and memory performance correlated with the mother’s stress and anxiety levels during pregnancy.[20]
Surrogacy severs the relational aspect of biological motherhood and opens a door for the objectification and exploitation of women, as well as creating deep emotional wounds for children. Canadian law must not condone such a practice.
Surrogacy in Canada
The Assisted Human Reproduction Act criminally prohibits paying a woman to be a surrogate mother, paying an intermediary to arrange surrogacy services, and accepting payment for arranging a surrogacy.[21] These prohibitions are designed to criminalize domestic commercial surrogacy. Altruistic surrogacy, on the other hand, is permitted within certain boundaries. Expenses related to pregnancy may be reimbursed, but no additional compensation is permitted.[22] Recent regulations help clarify which expenses qualify and how to ensure proper documentation.[23]
But the law is barely enforced. In 2013, one fertility agency was charged for paying surrogates but was fined only $60,000. Since then, there have been no prosecutions for commercial surrogacy in Canada. Disputes over reimbursement amounts and excessive expense payments remain a risk, and surrogacy agencies lack oversight and transparency.[24] In practice, it is difficult to differentiate between legitimate surrogacy expenses and illegitimate payments that incentivize surrogacy as an income-generating opportunity.[25]
Instead of improving oversight and enforcement, the Canadian government recently increased incentives for engaging in surrogacy by expanding the Medical Expense Tax Credit to cover more surrogacy expenses.[26]
In 2018, Liberal MP Anthony Housefather (Mount Royal, Quebec) introduced a bill in the House of Commons to decriminalize commercial surrogacy in Canada.[27] He argued that it is “paternalistic” to ban surrogacy on the grounds that it commodifies women and babies, because women are competent to make decisions about their own body.[28] Even if Housefather is right with respect to surrogate mothers – though the evidence indicates that they are predominantly women of low socio-economic status – Housefather seems to ignore the concern about commodifying children. Without payment to incentivize a surrogate, no child would be brought into existence through commercial surrogacy.
But Housefather also seems to miss the purpose of Canada’s ban on commercial surrogacy as it relates to would-be surrogates. The law’s purpose is in part to uphold the dignity of women by preventing the commodification or exploitation of their reproductive capacities. By that standard, many laws designed to uphold human dignity and protect the vulnerable could be dismissed as paternalistic, but both are important and legitimate objectives of the law. Markets have moral and legal limits.
While some countries prohibit commercial surrogacy tourism, adults abroad who wish to be parents are increasingly looking to Canada as an option. International ‘customers’ can avoid Canada’s ban on commercial surrogacy simply by arranging payment outside of Canada for surrogates in Canada.[29]
Moreover, Canada’s citizenship and immigration laws facilitate, rather than prevent, commercial arrangements with surrogates outside of Canada. Canada tacitly approves and facilitates international commercial surrogacy arrangements through a streamlined process for granting citizenship to children born through potentially exploitative surrogacy arrangements. Any adult who is recognized as the legal parent of a child on the birth certificate or other birth records such as surrogacy contracts can automatically pass on their Canadian citizenship even if they have no biological relation to the child.[30] Unlike international adoption processes, surrogate parentage bypasses the process by automatically recognizing the child as a Canadian citizen. By granting automatic citizenship to these children, we facilitate a practice internationally that we have banned at home (commercial surrogacy), effectively outsourcing exploitation and outsourcing the ethical debate. Simply refusing citizenship is not a viable solution.[31] But if Canada is to be taken seriously in its stand against the commodification and exploitation of women and children, we must end our willing participation in transnational commercial surrogacy, in addition to further restricting domestic surrogacy arrangements.
Surrogacy Contracts
Surrogacy agreements often involve contracts which, depending on the jurisdiction, may be unenforceable.[32] In many jurisdictions, the legal validity and enforceability of such contracts is ambiguous.[33] Surrogacy contracts frequently require that the birth mother refrain from activities that could harm the child and may include clauses to cover complexities such as a multiples pregnancy, pregnancy complications, a disabled fetus, or a change in attitude towards giving up the baby.
Since surrogacy depends on both the birth mother forfeiting any parental rights and the intended parents taking on those parental rights, the intended parents can threaten to refuse to take custody of the child as a coercive tool to ensure that the birth mother abides by their wishes during pregnancy.[34]
In one Canadian case, an altruistic surrogate was pressured to abort a child with Down syndrome. She originally refused, hoping that the intended parents might be persuaded to take custody of the child regardless, but ultimately, they were not persuaded, and the child was aborted.[35] Again, we see the outcome of children being viewed as a commodity, a product to be kept or discarded based on their perceived qualities or desirability.
Surrogacy agreements often include penalties for surrogates who refuse to comply with the wishes of the intended parents. This includes cases where a child has a disability, where the intended parents want to reduce a multiples pregnancy (twins, triplets, etc.) by aborting one or more of the children, or other scenarios with which the intended parents may be unhappy.[36] Surrogates are often controlled by the wishes of the intended parents, sometimes resulting in major legal battles and disputes if their choices and decisions differ.
One woman in British Columbia entered a surrogacy agreement with friends so they could have a child. After the child was born, a legal battle ensued as the birth mother sought to be declared a legal parent with access rights, although this was not provided for in the surrogacy agreement.[37] Introducing contracts and third parties into human reproduction leads inevitably to such disputes. A surrogate is expected to give up a great degree of control over her life and her body. She is also expected to give up the child she nourished and bore. As many surrogates discover too late, what is legally expected of them often turns out to be a much greater burden than they contemplated.
Breaking Bonds
No matter the type of surrogacy, there are risks and harms involved for both the child and the surrogate mother. The birth mother’s diet, schedule, emotions, and general health during pregnancy can have long-term impacts on the child.[38] The most fundamental harm comes from the intentional disruption of the reciprocal bond between the birth mother and the child which develops well before the child is born. The child is “pre-wired” to form strong attachment bonds to his or her birth mother.[39] Maternal-fetal attachment (MFA) is the emotional bond between mother and child that begins during pregnancy, extends after birth, and is beneficial to both mother and child. Weak MFA has been shown to increase the risk of pregnant mothers engaging in activities that are detrimental to the child’s health.[40]
The natural bond between birth mother and child is illustrated by one surrogate’s testimony: “I agreed to be a surrogate for a friend who was unable to conceive, using her husband’s sperm. I stayed attached after birth and breast fed my baby … I was supposed to surrender the baby to her for adoption by her. She can be the aunt, but I am the mother. I’m sorry in a way that it didn’t work out, but it didn’t.”[41]
In surrogacy, the surrogate must be reconstructed as something other, something less than a mother, to give full motherhood status to the commissioning parent. Surrogacy agencies, doctors, and others involved in the process minimize the meaning of gestation through dissociation, trying to convince a woman that a baby in her womb has nothing to do with her because it does not have her genes. In reality, the birth mother still has some of the child’s cells in her body decades after the child is born.[42]
The psychological cost of giving up a child is unpredictable, requiring the birth mother to essentially gamble her own mental health on the contract. A surrogate named Heather spoke passionately about this. As a paid surrogate, she had completed a successful surrogacy and felt good about a second. This time, the intended parents pressured her to abort the child she was carrying because he had a disability, but when she refused and gave birth, they claimed him anyway. Giving up the child she carried to the people who had wanted him aborted was psychologically and emotionally excruciating for Heather.[43]
Commodification and Exploitation of Women
Commercial surrogacy commodifies women. The term itself suggests it – to ‘commercialize’ requires a commodity to be bought and sold on a market. In surrogacy, the commodities are the womb and the child. Surrogacy has been described as ‘renting a womb’ and some writers have compared it to human trafficking.[44]
In both commercial and altruistic surrogacy, pregnancy is unpredictable and the surrogate mother cannot have full understanding of what is involved with giving up a child and cooperating with the wishes of the intended parents, even if she has been a surrogate before. This raises the question of whether a surrogate can give valid informed consent.[45] At the same time, surrogacy requires a woman to detach her personhood from her body. In surrogacy, a woman’s body is sold or contracted out for reproduction.[46]
In this way, a birth mother’s reproductive capacities are reduced to a business asset. The commissioning parents (purport to) acquire contractual rights to use her body as an environment for their child and to make decisions about her lifestyle, healthcare, and even whether the child will be aborted in difficult circumstances.[47] The American College of Obstetricians and Gynecologists put it this way: “[T]o allow a woman to contract away the right to control her own health would be to institute contractual slavery.”[48]
All forms of surrogacy can be exploitative. Poverty-stricken women often agree to be commercial surrogates out of desperation.[49] In areas where work opportunities are limited and poverty is extreme, surrogacy often seems like the only option.[50] In India, formerly a popular place for surrogacy, surrogates often suffered separation from their families, risky multiples pregnancies, and high rates of caesarean births, for as little as 10% of the fees paid to American surrogates.[51] Impoverished women around the world are sometimes forced by their husbands or by pimps to become cogs in commercial “baby-making factories.”[52]
A recent Lithuanian resolution on surrogacy linked both altruistic and commercial surrogacy to “a modern form of slavery and trafficking in human beings.”[53] Similarly, a recent resolution by the European Parliament makes no distinction between altruistic and commercial surrogacy, yet “acknowledges that sexual exploitation for surrogacy … is unacceptable and a violation of human dignity and human rights.”[54]
Even without money changing hands, serious psychosocial and moral risks accompany altruistic surrogacy. Altruistic motivation or an emotional bond between parties to the agreement are not sufficient to avoid or resolve disagreements that may arise.[55]
Altruistic surrogacy arrangements are not immune from exploitation, conflict, and confusion. Gail was a surrogate who wanted to give her brother and his partner a chance to have children. To her dismay, when she was pregnant, her brother began controlling her behaviour and their relationship fell apart. After Gail almost died from health complications, her brother said he would “get some other stupid female to have my children.”[56] The Baird Commission, a non-partisan expert panel that examined emerging assisted reproductive technologies, also recognized that non-commercial surrogacy arrangements could potentially harm women, children, families, and society.[57]
A Columbia Law research study showed that American surrogates experience exploitation similar to surrogates in other countries, such as a lack of informed consent, severe health risks, and economic coercion.[58] Multiple countries, including 21 European states, have widely prohibited surrogacy, recognizing the many dangers connected to it.[59] All types of surrogacy are prohibited in France, Germany, Italy, and Spain.[60]
Commodification and Exploitation of Children
Children are also commodified through surrogacy. All children possess human dignity and are worthy of love, respect, and care, because they are made in God’s image.[61] Canadian public policy rightly recognizes that the commodification of human life is abhorrent, as reflected in the prohibition of commercial surrogacy in the Assisted Human Reproduction Act. As the Baird Commission Report stated: “Commodifying human beings and their bodies for commercial gain is unacceptable because this instrumentalization is injurious to human dignity and ultimately dehumanizing.”[62] This principle needs to be better reflected in Canadian policy and its enforcement.
Supporters of commercial surrogacy argue that those seeking to be parents through surrogacy are not paying for a child or for parental rights, but that they are contracting for gestational services.[63] This objection does not withstand scrutiny, however. If the intending parents are only paying for the surrogate mother’s services and the child is not a term or commodity of the contract, they could not require the mother to relinquish the child after birth.[64] But that is the very object of the agreement – the transfer of a child to paying clients, the intended parents.
According to article 2(a) of the “Optional Protocol to the Convention on the Rights of the Child on the Sale of Children” of which Canada is a signatory, “Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.”[65] A plain reading of this definition demonstrates that any commercial surrogacy arrangement amounts to the sale of a child contrary to the protocol. In fact, the reference to “any other consideration” in article 2(a) may also include reimbursement of expenses and all forms of surrogacy violate the rights affirmed in the Convention.[66]
One child born through traditional surrogacy explained his concerns with the practice: “It looks to me like I was bought and sold … The fact is that someone has contracted you to make a child, give up your parental rights and hand over your flesh and blood child … When you exchange [something] for [m]oney it is called a commodity. Babies are not commodities. Babies are human beings.”[67] It is immensely damaging for children to grow up feeling both abandoned by their birth mother and purchased by their legal parents. These emotions are a natural consequence of the commodification of babies.
- Seeks to mend a broken situation and provide a family for a child.
- Child is primary “client” – the practice is designed to ensure a child, who would not otherwise have parents, has parents.
- Parents support the child and do not cause the child’s loss.
- Has safeguards in place designed to ensure that children, who are especially vulnerable, are placed in safe and stable homes.
Surrogacy:
- Creates a broken situation where adults intentionally facilitate the removal of a child from his or her biological parents or birth mother.
- Adults are primary “clients” – the practice is designed to ensure that would-be parents get the child they want, a child who would not otherwise exist.
- Children must live with the adults who caused them to be removed from their biological parent(s) and/or birth mother.
- Has no procedural safeguards to ensure the fitness of parents.[68]
Commercial surrogacy is sometimes compared to adoption, since the latter also involves money changing hands. Unlike surrogacy, however, with adoption, the payments do not purchase children, but simply cover expenses involved in transferring an already existing child in need of care into the adoptive parents’ custody. Overall, the adoption process verifies that the adoptive parents are fit to take care of the child and ensure his or her safety.[69]
Intended parents sometimes abandon a child procured through surrogacy when the child does not meet their expectations. One child, Bridget, was born in Ukraine to a surrogate and spent three years in the hospital where she was born before being moved into a children’s home. At one point when Bridget was ill, the intended parents requested that her life support be turned off. She had multiple disabilities which caused her American intended parents to abandon her, stating “We will not take her to America. This baby is incurable.”[70] As the object of a contract, children are often caught in a legal battle or abandoned because they are unwanted by both their surrogate mother and their intended parents, leaving them without any familial support.[71]
The UN Convention on the Rights of the Child states that the child has “the right to know and be cared for by his or her parents.”[72] In many cases, surrogacy deprives a child of a relationship with either or both of his or her genetic parents. One child born through surrogacy and raised by her biological father and social mother writes: “I wonder all the time who my biological mother is … There [are] just so many questions and no answers. Only my close friends know about this and they want to know these things as well … Maybe I’ve already seen her and not even know it. The worst thing about being this way is not knowing.”[73]
Surrogacy also makes children more vulnerable to abuse. For example, a convicted pedophile became a father through international surrogacy. If he had been subject to adoption protocols, he would not have been able to become a father, yet surrogacy has no such requirements.[74] Adoption processes focus on whether an adult is suitable to be an adoptive parent and prepared to raise an adopted child. Children living with non-biologically related adults are at greater risk of abuse and abandonment.[75] Because of these risks, Canada ought to ensure that commissioning parents are required to adopt children born through surrogacy – with all the rigorous safety checks of adoption.
Recommendations:
As the Baird Report stated, a key public policy goal is to avoid creating situations where conflict affecting children is likely to occur.[76] With this goal and the harms of surrogacy in mind, it is clear that Canadian law cannot condone surrogacy. The following recommendations outline how Canadian law around surrogacy ought to be improved.
Recommendation #1:
Canada ought not to intentionally divide motherhood into categories and thereby harm women and children. Parliament should follow the lead of European countries such as France, Italy, Spain, and Germany by prohibiting all forms of surrogacy and refusing to recognize surrogacy contracts as legally valid.
Recommendation #2:
The federal government ought to amend the Assisted Human Reproduction Act to include extra-territorial jurisdiction for the offence of paying a surrogate or intermediary or for acting as an intermediary for surrogacy agreements or payments. If it is not acceptable in Canada, we should not export the practice to more vulnerable countries instead. This recommendation can be implemented by amending the “Offences” portion of the AHRA by adding a new section, as follows:
Offence committed outside Canada
60.1(1) Every person who commits an act outside Canada that, if committed in Canada, would constitute an offence under section 6 is deemed to have committed that act in Canada if the person is
(a) a Canadian citizen;
(b) a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act who, after the commission of the act or omission, is present in Canada; or
(c) a public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province.
Jurisdiction
(2) If a person is alleged to have committed an act that is deemed to have been committed in Canada under subsection (1), proceedings for an offence in respect of that act, whether or not that person is in Canada, may be commenced in any territorial division in Canada. The person may be tried and punished for that offence as if the offence had been committed in that territorial division.
Appearance of accused at trial
(3) For greater certainty, the provisions of the Criminal Code relating to the requirements that an accused appear at and be present during proceedings and the exceptions to those requirements apply to proceedings commenced in any territorial division under subsection (2).
Person previously tried outside Canada
(4) If a person is alleged to have committed an act that is deemed to have been committed in Canada under subsection (1) and they have been tried and dealt with outside Canada for an offence in respect of the act so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada.
Exception for foreign trials in absentia
(5) Despite subsection (4), a person may not plead autrefois convict to a court that charges an offence in respect of the act if
(a) the person was not present and was not represented by counsel acting under the person’s instructions at the trial outside Canada; and
(b) the person was not punished in accordance with the sentence imposed on conviction in respect of the act or omission.
Recommendation #3:
If Parliament fails to implement recommendation 1, the federal government should limit surrogacy to Canadian residents to prevent reproductive tourism. Section 6 of the AHRA should be amended as follows:
6(6) No person in Canada shall become a surrogate for a commissioning party who is not a Canadian resident.
6(7) No public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province in Canada shall facilitate a surrogacy arrangement for a commissioning party who is not a Canadian resident.
Recommendation #4:
Following the implementation of recommendation 2,
- Immigration, Refugees and Citizenship Canada should end the streamlined process of granting Canadian citizenship to children born through international surrogacy arrangements. To do this, the regulations must state that a child born through assisted human reproduction is only a Canadian citizen if the birth mother and/or at least one biological parent are Canadian citizens. The federal government should work with provincial governments to ensure that birth certificates accurately reflect both the surrogate mother and the biological parents.
- In the case of international surrogacy, the custody and citizenship of the child should be determined by a court guided by the best interests of the child.
- The Children’s Aid Society in the relevant provinces should be involved in placing a child born through international surrogacy arrangements with a family, only after an assessment of the suitability and safety of the family has been established.
Recommendation #5:
If recommendation 1 is not implemented, commissioning parties who are not genetically related to a child born through surrogacy should be required to legally adopt the child through the provincial adoption process. The Federal Minister of Families, Children and Social Development should be tasked with working with provincial counterparts to accomplish this. Provincial governments should pass legislation to incorporate surrogacy into their adoption processes.
Endnotes
[1] Kelly Burch, “A couple used surrogates to have 21 babies in less than 2 years. Experts say that having such a big family is unusual but could work,” Insider, Nov. 9, 2021.
[2] Lois McLatchie and Jennifer Lea, “Surrogacy, Law & Human Rights,” ADF International, 2022, 40-41.
[3] In another case, a Japanese millionaire fathered twelve children through surrogates in Thailand, housing them in a Bangkok apartment. Although this man was suspected of human trafficking, he won a legal battle for custody of the children because he was the only known biological parent. Because of cases like this, Thailand ultimately banned commercial surrogacy in 2016. See Nur Asyiqin Mohamad Salleh, “Japanese behind ‘baby factory’ wants more surrogate kids,” The Straits Times, Feb. 25, 2018.
[4] “Universal Declaration of Human Rights,” United Nations, Article 25.
[5] “Convention on the Rights of the Child,” United Nations, Preamble.
[6] “Convention on the Rights of the Child,” Article 7(1).
[7] Canada ratified the United Nations Declaration of Human Rights in 1976, and the Convention on the Rights of the Child in 1991.
[8] Stephanie Gray Connors, Conceived by Science: Thinking Carefully and Compassionately about Infertility and IVF (Florida: Wongeese Publishing, 2021), 15.
[10] John Frame, The Doctrine of the Christian Life (Phillipsburg, NJ: P&R Publishing, 2008), 788.
[11] Katy Faust, Them Before Us: Why We Need a Global Children’s Rights Movement (New York, NY: Post Hill Press, 2021),171.
[12] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 9.
[13] Frame, The Doctrine of the Christian Life, 788.
[14] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” iv.
[15] Faust, Them Before Us, 207-208.
[16] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 24.
[17] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” iv.
[18] Faust, Them Before Us, 187.
[19] Sarine S. Janetsian-Fritz et al., “Maternal deprivation induces alterations in cognitive and cortical function in adulthood,” Translational Psychiatry 8, no. 71 (2018).
[20] Elizabeth A. Werner et al., “Prenatal predictors of infant temperament,” Developmental Pschobiology 49, no. 5 (2007). See also C. Buss et al., “Maternal pregnancy-specific anxiety is associated with child executive function at 6-9 years age,” Stress 14, no. 6 (2011).
[21] Assisted Human Reproduction Act, (2004), c.2, s. 6(1), 6(2), and 6(3).
[22] Assisted Human Reproduction Act, s. 6(1).
[23] “Reimbursement Related to Assisted Human Reproduction Regulations,” Government of Canada, June 10, 2019.
[24] Chris Glover, Chelsea Gomez, and Laura Clementson, “Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of,” CBC News, Mar. 2, 2020.
[25] Megan Best, Fearfully and Wonderfully Made: Ethics and the beginning of human life, (Kingsford, NSW, Australia: Matthias Media, 2012), 366.
[26] “Tax Measures: Supplementary Information,” Government of Canada, April 7, 2022.
[27] Kathleen Harris, “Liberal MPs, advocates want to legalize fees for surrogate moms and sperm donors,” CBC News, March 27, 2018.
[28] Harris, “Liberal MPs, advocates want to legalize fees for surrogate moms and sperm donors.” Housefather has said there are not enough surrogates in Canada, though the number of surrogates reportedly climbed from 285 in 2012 to 700 in 2017.
[29] Jennifer Parks, “Caution’s needed in shaping surrogacy laws,” Policy Options, April 23, 2019.
[30] “Who is a parent for citizenship purposes when assisted human reproduction (AHR), including surrogacy arrangements, is involved?” Government of Canada, July 15, 2020.
[31] This is the essence of the European Court of Human Rights judgment in Mennesson & Labassee v. France: the best interests of the child prevail. In this landmark judgment of June 2014, the Court, availing itself of the ‘best interests of the child’ principle, clarified that France had violated Article 8 of the European Convention on Human Rights in refusing to recognize the legal parent-child relationship of a genetic father with his surrogate-born children. See Petra De Sutter, “Children’s Rights Related to Surrogacy,” Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly, Council of Europe, 2016, para. 16.
[32] Nicole Bromfield and Karen Smith Robati, “Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations,” Global Social Welfare 1, no. 3 (2014), 125.
[33] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 40-41.
[34] Ruth Walker and Liezl Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality,” Bioethics 29, no. 8 (Oct. 2015).
[35] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality.”
[36] Katy Faust, Them Before Us, 184-185.
[37] “B.C. woman fights with couple over surrogacy agreement involving girl,” Vancouver Sun, July 5, 2021.
[38] Faust, Them Before Us, 172.
[39] Marcus Agnafors, “The harm argument against surrogacy revisited: Two versions not to forget,” Medicine, Health Care and Philosophy 17, No. 3 (2014), 360-361.
[40] Agnafors, “The harm argument against surrogacy revisited,” 360-361.
[41] “I Cannot Detach From the Child I Bore,” AnonymousUs, Feb. 5, 2019.
[42] Renate Klein, Surrogacy: A Human Rights Violation (Australia: Spinifex Press, 2017), 22-23.
[43] Jennifer Lahl and Matthew Epinette, “Breeders: A Subclass of Women?” Center for Bioethics and Culture Network, 2014.
[44] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality,” 531.
[45] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 13-14.
[46] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 17.
[47] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality,” 531.
[48] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality,” 532.
[49] Stephen Wilkinson, “Exploitation in International Surrogacy Arrangement,” Journal of Applied Philosophy 33, no. 2 (2016), 128.
[50] Bromfield and Robati, “Global Surrogacy, Exploitation, Human Rights and International Private Law,” 126.
[51] Bromfield and Robati, “Global Surrogacy, Exploitation, Human Rights and International Private Law,” 126.
[52] Kishwar Desai, “India’s surrogate mothers are risking their lives. They urgently need protection,” The Guardian, June 5, 2012. In 2015, India banned foreign nationals from commissioning surrogacies. By 2018, commercial surrogacy was completely banned in India and altruistic surrogacy was permitted only in specific circumstances. See “Intended Parents: All You Need to Know about Completing a Surrogacy in India,” Surrogate.com.
[53] Seimas of the Republic of Lithuania, “Resolution on condemning all forms of surrogacy,” June 25, 2020, No XIII-3160.
[54] “European Parliament resolution of 21 January 2021 on the EU Strategy for Gender Equality,” European Parliament, Jan. 21, 2021.
[55] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality.”
[56] Lahl and Epinette, “Breeders.”
[57] Canada, “Proceed with Care: the final report of the Royal Commission on New Reproductive Technologies,” Government of Canada, Privy Council Office, 1993, 691.
[58] Alex Finkelstein et. al, “Surrogacy Law and Policy in the U.S.: A National Conversation Informed by Global Lawmaking,” Columbia Law School Sexuality & Gender Law Clinic (2016), 25-32.
[59] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 40-41.
[60] Valeria Piersanti et al., “Surrogacy and “Procreative Tourism”. What Does the Future Hold from the Ethical and Legal Perspectives?” Medicina (Kaunas) 57, no. 1 (2021).
[61] Matthew 18:10, Mark 10:14, Psalm 127:3-5.
[62] Canada, “Proceed with Care,” 55-56.
[63] Walker and Van Zyl, “Surrogate Motherhood and Abortion for Fetal Abnormality,” 531.
[64] John Tobin, “To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy,” International and Comparative Law Quarterly 63, no. 2 (2014), 341.
[65] “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography,” United Nations, May 25, 2000.
[66] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 31.
[67] Brian C, “The Son of a Surrogate,” Aug. 9, 2006.
[68] For a fuller explanation, see “Surrogacy is Just Like Adoption,” What Would You Say, Sept. 4, 2019. See also Faust, Them Before Us, 203-213.
[69] Faust, Them Before Us, 203.
[70] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” ii.
[71] McLatchie and Lea, “Surrogacy, Law, and Human Rights,” 28.
[72] “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography,” United Nations.
[73] “NOT KNOWING,” AnonymousUs.org, April 7, 2013.
[74] Noam Barkan, “Convicted pedophile raises surrogate daughter,” YNetNews.com, Feb. 6, 2013. For a similar story, see also Nick Ralston, “Named: the Australian paedophile jailed for 40 years,” The Sydney Morning Herald, June 30, 2013. As cited in Faust, Them Before Us, 176.
[75] Best, Fearfully and Wonderfully Made, 373.
[76] Canada, “Proceed with Care,” 687.