I spend my days negotiating the conception and birth of babies. As a fertility lawyer, I am intimately familiar with the concerns and realities of Canadians who want to be parents, and those who help them along the way. This has exposed me to the fascinating, humbling and inspiring world of surrogacy.
Many Canadians are aware that it is illegal in Canada to pay a surrogate for her services (they may be unaware, however, of just how severe the penalty is – up to 10 years in jail and/or a $500,000 fine!). But what seems to confuse people is the motivation involved. The question I am asked most frequently about surrogacy in Canada is this: Why would a woman take on this risk, this burden, without financial incentive? Put differently, take away the potential for payment, and why would anyone choose to do this?
The more surrogacies I am involved with, the more I know this to be true: Surrogacy in Canada is simply about people helping people. Women who choose to be surrogates recognize there is inherent value in helping others, in doing something meaningful that could not happen otherwise.
As a surrogacy lawyer, I have had the opportunity to work with, and be impressed by, women from across the country who have decided to act as a gestational carrier for someone else. One of my clients (who has been a surrogate a couple of times now) is the wife of a pastor who homeschools her five children and believes that God has given her the resources and the opportunity to help an infertile couple have children. Another is a veterinarian who was so touched by her friend's struggle to have children that she offered to help with her own body. I am frequently told by women who choose to act as surrogates that they feel what they are doing is valuable and worthwhile; they are proud of their act of generosity.
We don't question why a family would take in a foster child, even though we recognize the difficulties and sacrifices involved. We don't question why an individual would be willing to donate bone marrow, despite the pain and the risks. Rather, we applaud those rare, selfless individuals who are willing to step up and help.
So, too, we ought to applaud the women (and their families) who offer to carry someone else's child. By asking why someone would choose to do this, and expressing disbelief at this choice, we sully something beautiful.
You might wonder if ethical surrogacy, done for "the right reasons," happens only because commercialization is prohibited. I cannot say for certain that this is the case. There is some evidence (both anecdotal and academic) that even where surrogacy is commercialized in Western countries, the reason why someone chooses to be a surrogate continues to have very little to do with money.
I am not certain that the typical profile of a woman who chooses to act as a surrogate in California, for example, where commercialized surrogacy is legal, is all that different from the profile of a Canadian surrogate where only altruistic surrogacy is permitted. Both in Canada and in jurisdictions within the U.S. where commercialized surrogacy is permitted, surrogates tend to be white women about 30 years old (give or take five or so years) who are not on social assistance and have varying degrees of higher education.
As University of Manitoba law professor Karen Busby co-wrote in an academic paper: "Contrary to popular beliefs about money as the prime motive, surrogate mothers overwhelmingly report that they choose to bear children for others primarily out of altruistic concerns. Although financial reasons may be present, only a handful of women mentioned money as their main motivator."
Also significant are the consistent findings of academics that Western women who engage in surrogacy (commercial or altruistic) are satisfied, and that surrogacy is an overwhelmingly positive experience for the surrogate, the intended parents and even the surrogate's children.
Surrogacy is a generous, admirable act, whether altruistic or commercialized. We should remember to honour it as such.
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Sara R. Cohen is a fertility lawyer based in Toronto, but with clients throughout the country and abroad. She is the founder of Fertility Law Canada, a partner at D2Law LLP and the author of the award-winning Fertility Law Canada blog. Cohen regularly works with intended parents, gestational surrogates and donors, as well as domestic and international fertility clinics and cryobanks. Cohen is a frequent lecturer about fertility law issues, and a published author. She is an advocate for all parties involved in third party reproductive technology.