Today’s blog was co-authored by Pahul Sond, Student-at-Law, at Fasken LLP

Surrogacy is a life-changing journey—but when it crosses international borders, the process becomes more complex. This post highlights a recent CTV news story, applicable laws in Canada, and a Q&A I conducted with a friend who recently went through the journey.

Canadian Surrogate Turned Away at the Border

A recent CTV News story titled “U.S. border officers turn back Canadian surrogate seeking fertility care” highlights cross border surrogacy challenges. Melody, a Canadian surrogate helping an American family for the second time, was denied entry into the United States while traveling to a California fertility clinic.

Despite carrying proper documentation and a return ticket, U.S. customs officials alleged her visit was “illegal” and suggested she was entering for “financial benefit.” Under U.S. immigration law, compensated surrogacy can be classified as employment, requiring a work visa—even though surrogacy is legal in both Canada and California.

The issue stems from U.S. immigration rules that treat compensated surrogacy as employment. Even though Melody was only reimbursed for expenses, border officials interpreted her role as involving financial gain. If an activity is deemed employment, a visitor visa is insufficient. While certain U.S. states permit commercial surrogacy, federal immigration law governs entry and work authorization. This interpretation created a conflict for Melody, who complied with Canadian law but faced U.S. restrictions.

Canadian Surrogacy Laws: Altruistic Framework Under the AHRA

In Canada, surrogacy is regulated by the Assisted Human Reproduction Act (AHRA), which permits only altruistic surrogacy. Key points include:

• No payment for services: Surrogates cannot receive compensation beyond documented expenses.
• Reimbursable costs: Medical expenses, travel, maternity clothing, and in limited cases, lost income (with a doctor’s note).
• Strict penalties: Offering or accepting payment beyond these limits is a criminal offence, punishable by fines up to $500,000 or imprisonment for up to 10 years.
• Age requirement: Surrogates must be at least 21 years old.
• Commercial arrangements prohibited: Canada does not allow paid surrogacy agreements.

Cross-Border Surrogacy: How to Stay Compliant

International surrogacy arrangements require extra caution. Consider four essential steps for Canadian intended parents:

• Draft a written surrogacy agreement and obtain independent legal advice.
• Keep receipts and maintain detailed records of all reimbursements.
• Secure medical certification for any lost income reimbursement.
• Complete the provincial parentage process after birth as per local laws.

By following these steps and engaging cross-border legal counsel early, families can minimize risks and ensure ethical, transparent arrangements.

Q&A: Advice from Someone Who’s Been There

Q: What should Canadian families know about the legal and practical aspects of surrogacy?

A: As a Canadian woman who had her baby via surrogacy, I can share that the legal process here differs from the U.S. In Canada, surrogacy is considered altruistic, so intended parents cover all pregnancy-related costs. As long as the surrogate provides receipts and proper documentation, they should be reimbursed for expenses like medication, travel, and parking.

Both intended parents and surrogates need separate legal counsel, which is paid for by the intended parents.

While the legal process can seem daunting, a good match with your surrogate makes these conversations easier. I suggest discussing key topics early — termination, reimbursement amounts, attendance at appointments, birth preferences, and vaccinations — to avoid delays or mismatched expectations. If these issues aren’t aligned, a match can be broken.

Surrogacy is the greatest gift—creating a family—and should be approached with openness and respect.