Disclaimer: This article is an original work by Canbaby Fertility Consultant LTD, a Canadian surrogacy consulting company. Reproduction or redistribution without permission is strictly prohibited.
Surrogacy is a life-changing journey for many individuals and couples who are unable to carry a pregnancy. For Canadian intended parents, however, pursuing surrogacy within Canada comes with significant limitations—chief among them being the legal prohibition of commercial surrogacy. As a result, many turn their eyes abroad to countries where paid surrogacy arrangements are legal and seemingly more accessible.
But international surrogacy is not without its risks. Legal pitfalls, ethical uncertainties, and citizenship complications can turn a hopeful journey into a legal nightmare. In this article, we explore the top legal risks of surrogacy in foreign countries, especially as they pertain to Canadian intended parents.
1. Lack of Universal Surrogacy Laws
One of the most important things to understand is that there is no international legal standard for surrogacy. Each country—and sometimes individual states or provinces within a country—has its own legal framework for surrogacy. This means:
- What is legal in one country may be completely banned in another.
- Contracts that are enforceable in one jurisdiction may be void or even illegal elsewhere.
- Canadian surrogacy law does not necessarily recognize the legality or structure of foreign surrogacy agreements.
For Canadian families, this patchwork of laws makes it crucial to conduct thorough due diligence and work with legal professionals who are familiar with both Canadian and international surrogacy laws.
2. Risk of Unenforceable Contracts
In countries such as Ukraine (before the war), Georgia, Colombia, or Mexico, commercial surrogacy is legal and contracts can be signed between intended parents and surrogate mothers. However, the enforceability of these contracts can be precarious:
- Some countries do not recognize surrogacy contracts as legally binding. This means that if a surrogate mother changes her mind and wants to keep the baby, courts may uphold her parental rights over those of the intended parents.
- In the case of legal disputes, intended parents may have to litigate in a foreign jurisdiction, which can be expensive, time-consuming, and emotionally draining.
- In some regions, language barriers and poorly translated legal documents further increase the risk of misinterpretation or breach.
In contrast, Canadian surrogacy contracts are limited in their scope—they are not enforceable in the sense of compelling a surrogate to relinquish the child—but they are used as clear documentation of intent and mutual understanding. These legal frameworks do not automatically carry over to foreign jurisdictions.
3. Changing Political and Legal Landscapes
Surrogacy laws are constantly evolving, particularly in countries that receive a large number of international clients. What may be legal today could be heavily restricted or banned tomorrow. Some recent examples include:
- India and Thailand both previously allowed commercial surrogacy but later banned or restricted it to local citizens after high-profile ethical and legal controversies.
- Mexico, once seen as a surrogacy destination, has had several state-level bans or restrictions enacted in recent years.
- Ukraine and Georgia, while still allowing surrogacy, have seen heightened geopolitical instability that can directly affect program continuity and legal certainty.
Canadian parents who sign a contract while the law is favorable may find themselves in legal limbo if the law changes before their child is born. This can delay the birth registration, citizenship application, or even the ability to exit the country with the child.
4. Citizenship and Immigration Issues
One of the most critical risks for Canadians pursuing surrogacy abroad is the uncertainty surrounding the child’s citizenship and travel documents. Canadian immigration law does not automatically grant citizenship to a child born abroad via surrogacy unless specific conditions are met.
Common legal complications include:
- Determining parentage: Canada may not recognize the intended parents as legal parents without a court order, especially in cases where the child is not genetically related to one or both parents.
- DNA testing: The Canadian government may require genetic testing to confirm biological links before processing citizenship or passport applications.
- Delayed return: Parents may be stranded in the foreign country for weeks or months waiting for documentation.
- Stateless children: In rare cases, if neither the birth country nor Canada recognizes the intended parents, the child may temporarily be left without a recognized citizenship.
To avoid these issues, it’s vital to consult an immigration lawyer familiar with Canadian surrogacy laws before entering into any agreement abroad.
5. Ethical and Human Rights Concerns
Some foreign surrogacy arrangements—especially in low-cost destinations—raise serious ethical red flags:
- Lack of informed consent for surrogate mothers, particularly those from poor or rural backgrounds.
- Poor living or medical conditions for surrogates during the pregnancy.
- Coercion or exploitation, especially when women are recruited by third-party brokers or agencies without proper oversight.
Canada emphasizes ethical surrogacy practices that include medical screening, psychological counseling, and informed consent. While foreign programs may appear more flexible or affordable, they often do not adhere to the same human rights standards. This can raise ethical questions and, in some cases, expose Canadian parents to legal scrutiny upon return.
6. Dispute Over Parental Rights
In some jurisdictions, parental rights are automatically granted to the surrogate unless a court order establishes otherwise. This creates a high-stakes situation where the intended parents must:
- Go through a lengthy adoption or custody process;
- Prove their genetic link or demonstrate intent to parent;
- Possibly face legal resistance from the surrogate’s family or government agencies.
While such cases are rare, they can occur—especially in regions where surrogacy laws are vague, undeveloped, or not uniformly enforced.
7. No Legal Recourse in Case of Fraud
Another legal risk involves lack of recourse if things go wrong. In countries with weak enforcement systems or corruption, intended parents may:
- Lose their embryos, deposits, or fees;
- Fall victim to fraudulent clinics or agencies;
- Receive no compensation or justice even after being misled or defrauded.
In contrast, Canada has robust legal mechanisms to protect individuals from medical negligence or fraud. But once you cross borders, those protections may no longer apply, and pursuing legal action may be practically impossible.
8. Canadian Law on Reimbursement vs. Commercial Surrogacy Abroad
Under the Assisted Human Reproduction Act (AHRA) in Canada, only altruistic surrogacy is permitted. Surrogates can be reimbursed for out-of-pocket expenses but not paid for their services.
However, Canadian law does not prevent you from engaging in commercial surrogacy abroad. The issue arises if:
- Funds are transferred through Canadian financial institutions;
- Payments are disguised as reimbursements to avoid scrutiny;
- The child’s entry into Canada triggers immigration red flags if the process seems to involve illegal activity under Canadian standards.
Canadian authorities are unlikely to prosecute intended parents for using legal surrogacy programs abroad, but they will closely inspect documentation and may raise legal or ethical challenges if the process lacks transparency.
9. Legal Costs and Need for Dual Legal Representation
To safely navigate foreign surrogacy, you will likely need to hire two legal teams:
- A foreign lawyer or agency expert in the surrogacy laws of the destination country;
- A Canadian fertility and immigration lawyer who ensures compliance with Canadian laws and helps with post-birth documentation.
These costs can add $10,000–$20,000 CAD or more to the overall surrogacy budget, but they are essential to mitigate legal risks and avoid future complications.
Conclusion: Proceed With Caution and Legal Support
Surrogacy abroad can offer hope to Canadian parents who face barriers at home—but it comes with significant legal risks. The absence of universal laws, inconsistent contract enforcement, changing policies, and potential immigration issues make it crucial to plan thoroughly and legally.
If you’re a Canadian resident considering surrogacy in countries like Georgia, Colombia, Mexico, or the United States, be sure to:
✅ Consult both foreign and
Canadian legal experts;
✅
Understand the immigration and citizenship process;
✅
Work only with reputable, transparent clinics and agencies;
✅
Prepare for ethical, logistical, and legal complexities.
Surrogacy is not just a medical journey—it’s a legal one. And the more informed you are, the smoother your road to parenthood will be.
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