June 9 2020 - Changes to the Law: Reimbursement of Surrogates and Donors

On June 9, 2020, the law in Canada regarding reimbursement of surrogates and egg/sperm donors is changing.

Here is what is different after June 9, 2020

(1)   Declarations need to be completed and signed before reimbursements can be made

Previously the only paperwork required to reimburse a surrogate or donor was a receipt.  After June 9, 2020 intended parents and agencies will only be allowed to reimburse funds to surrogates and donors if they have obtained a “declaration” containing certain details from the surrogate/donor. Health Canada has created declaration forms for this purpose which are available here; however, the law does not require anyone use Health Canada’s templates. What’s important is ensuring the following information is included in the written declaration:

 ·        the surrogate/donor’s name and address

·        the nature of each purchase

·        the amount paid for each purchase or the amount requested for reimbursement (for example, if a surrogate buys personal items for her family at the pharmacy while also purchasing prenatal vitamins, she can do the math and show the amount actually owing)

·        the date the purchase was made

·        for costs relating to transportation by car, the addresses of the points of departure and destination, and total distance in kilometres driven between those two points

·        a statement indicating that each purchase was made in the course of the donation/surrogacy

·        a statement for each item indicating that the amount has not been paid to the surrogate/donor by any other source, in full or in part (in other words, an acknowledgement that there is no double-dipping)

·        a statement confirming that all of the information contained in the declaration is accurate and complete to the best of the surrogate/donor’s knowledge

If applicable, a physician’s note may also be required.

(2)   Allowable expenses are now defined under the law

‍Prior to June 9, 2020, the Assisted Human Reproduction Act did not state what reimbursements could lawfully be made to surrogates and donors; effective June 9, 2020 there is an actual list in the law of allowable expenses. Notably, Health Canada has provided a guidance document to help the public interpret the new law, and has made it clear that certain items not listed may still be lawfully reimbursed. For example, the guidance document says it can be permissible to reimburse an egg donor for lost wages if she has to miss work in order to donate her eggs. Why wasn't this expense included from the outset? We don't know. But at least we know that Health Canada recognizes the need for some flexibility. A good rule of thumb used by many fertility lawyers is to ask, was the expense/financial loss incurred because of the donation/surrogacy?

Here are the reimbursements that are now listed in the Assisted Human Reproduction Act as permissible:

For egg/sperm donation

·        travel expenditures, including expenditures for transportation, parking, meals and accommodation (if using an Uber or taxi, the receipt from the ride is acceptable; and if the donor is driving in their own vehicle, they must calculate the distance and apply the rate CRA uses for reimbursement of automobile expenses (just google “CRA mileage rate” and the year)

·        expenditures for the care of dependants or pets (such as dog-walking when the donor has to travel to out-of-town appointments)

·        the cost of counselling services relating to the donation

·        the cost of the donor’s lawyer (as independent legal advice is usually required)

·        expenditures for obtaining drugs or devices as defined in section 2 of the Food and Drugs Act

·        the cost of obtaining products or services that are provided or recommended by the donor’s physician and any cost relating to obtaining the written recommendation

·        health, disability, travel or life insurance coverage

·        charges for obtaining or confirming medical or other records

For surrogacy

·        travel expenditures, including expenditures for transportation, parking, meals and accommodation (if using an Uber or taxi, the receipt from the ride is acceptable; and if the surrogate is driving in her own vehicle, she must calculate the distance and apply the rate CRA uses for reimbursement of automobile expenses (just google “CRA mileage rate” and the year)

·        expenditures for the care of dependants or pets (such as a babysitter to watch the surrogate's children while she attends midwife appointments)

·        the cost of counselling services relating to the surrogacy

·        the cost of the surrogate’s lawyer (as independent legal advice is usually required)

·        expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act

·        expenditures for obtaining products or services that are provided or recommended in writing by a surrogate’s physician or midwife, and costs relating to obtaining the recommendation

·        the cost of a midwife or doula

·        expenditures for groceries, excluding non-food items (note: this is intended to be only groceries in relation to the pregnancy, which is frankly impossible to accurately calculate)

·        maternity clothes

·        expenditures for telecommunications (although this should only be new expenses incurred, not reimbursing a surrogate for costs she already pays prior to the surrogacy journey)

·        prenatal exercise classes

·        expenditures related to the delivery of the child

·        health, disability, travel or life insurance coverage

·        charges for obtaining or confirming medical or other records

(3)   Clarity is provided around when surrogates can be reimbursed for loss of income

Previously the law only contemplated surrogates being reimbursed for lost wages during the pregnancy. The law was fuzzy around whether it was lawful to reimburse surrogates for lost wages before and after the pregnancy, even though they invariably occurred and were directly caused by virtue of being a surrogate.

After June 9, 2020 intended parents, or an agency, can reimburse a surrogate for loss of income in a greater range of circumstances; however, certain documentation is required to ensure the reimbursement is legitimate.

Moving forward, surrogates will have to prepare a declaration (or can use Health Canada’s template) stating the following:

 
• the surrogate's name and address
 
• the start and end dates of the period during her pregnancy when she did not work for a reason certified by a qualified medical practitioner
 
• the amount requested for reimbursement
 
• a statement indicating that she has not received compensation from any other source, in full or in part, for the loss of income
 
• a statement indicating that all of the information in the declaration is accurate and complete to the best of her knowledge

Surrogates will need to provide "supporting evidence of the income that she would have earned had she not been absent from work for the period" and "a copy of the certification provided by a qualified medical practitioner". Does this mean a surrogate will have to request a physician's note every time she misses work for an appointment? It appears so.

For clarity, the loss of income declaration is separate from the declaration mentioned above that is required for other reimbursements.

Takeaways

1.      All reimbursements require a signed declaration by the donor/surrogate (although agencies may take on the work of completing the paperwork to be signed, where an agency is involved)

2.      Health Canada developed sample declaration forms that can be used by donors/surrogates preparing reimbursement requests. It is permissible to make your own version provided the information required by law is included.

3.      The declarations are not submitted to Health Canada. But they are important in case questions ever arise about whether the reimbursements made to a surrogate or donor were lawful.

4.      Whoever reimburses a surrogate must sign and date the declaration, and write the amount of loss income being reimbursed.

5.      Physician’s notes are required in order for surrogates to claim loss of income. The physician’s note (or “written certification” as it is called in the law) does not have to be in any particular format although it is expected industry standards will evolve over time.

If you are a surrogate, donor, or aspiring parent pursuing third party reproduction, we would be happy to assist you with the legal process! Call or text us at 416-937-8768.