Why a lack of oversight of surrogacy in Canada leaves some parents feeling taken advantage of

Cuddling a child of her own was something cancer survivor Anna Camille Tucci feared might never be possible.

In 2017, the Toronto woman had a full hysterectomy as part of treatment for ovarian cancer — but not before doctors harvested her eggs and created embryos with her husband’s sperm.

“Since I can remember, I wanted kids….That’s just something that was in my heart since I was tiny,” she said. “Even the thought of not being able to carry [a baby] — that was really difficult.”

But in December 2019, the 30-year-old’s dream of being a mom came true. A surrogate gave birth to Tucci’s healthy baby boy.

Motherhood has been “bliss,” Tucci says, yet she can’t shake lingering questions she has about the thousands of dollars she and her husband paid through the surrogacy agency they’d hired to help them navigate the delicate process.

In Canada, it is illegal to pay a surrogate, but it is legal to reimburse her for pregnancy-related expenses such as additional food, clothing, vitamins and any transportation costs she incurs travelling to her medical appointments. In some cases, the transactions are handled using a trust that is set up and managed by a surrogacy agency.

Over the course of a three-month investigation, CBC News spoke with dozens of people involved in surrogacy in Canada, including parents, surrogates and lawyers; their experiences reveal a burgeoning industry in which agencies lack oversight and mandatory transparency.

Five different families raised concerns about money that was paid to surrogates through their trust accounts.

Tucci wanted to know how nearly $2,000 a month was being spent, but the agency’s policy was that receipts aren’t released until after the birth.

In another case, an Ontario father demanded his agency send him his surrogate’s receipts. He found many didn’t have dates, some were duplicates, others were from before he’d met his surrogate, and one had a lottery ticket listed.

“I think people have found a way to pull the parents’ heartstrings,” Tucci said. “I think the industry as a whole — everyone that’s involved in it — I think they’re all there to make money in the end.”

Growing demand for surrogates

The most up-to-date data from Statistics Canada shows roughly one in six couples in Canada experience infertility — a figure that has doubled since the 1980s. Infertility combined with an increase in same-sex couples starting families means the demand for surrogates has boomed.

No public health agency tracks surrogate pregnancies, but data voluntarily provided by Canadian fertility clinics shows at least 816 surrogate births were reported between 2013 and 2017.

Once couples factor in fees for agencies, lawyers and fertility clinics, the cost can quickly reach $100,000 per pregnancy.

Introduced in 2004, Canada’s reproductive legislation was meant to prevent the exploitation of women and the commercialization of surrogacy.

The maximum penalty for paying a surrogate for things that aren’t pregnancy-related is a $500,000 fine and up to 10 years in prison.

Parents shocked by cost of reimbursements

Tucci and her husband selected a surrogate through an agency and paid the company nearly $10,000 in fees for consultation and to manage their surrogate’s monthly reimbursements through a trust fund. They negotiated a legal contract with their surrogate that allowed her to claim expenses up to a maximum of nearly $2,000 a month during the pregnancy.

“We thought she would never actually meet that max that we had in the contract. But we found out that that’s not true,” Tucci said.

The surrogate would submit her receipts to the agency every month. The agency would then review them and reimburse her through the trust fund.

When the couple realized the surrogate was claiming the maximum every month, they were shocked and began asking the agency to provide the actual receipts.

“We loved our surrogate. We trusted she was doing everything she could be doing to the best of her abilities, so it was more we were questioning [the agency’s] process of going through those receipts and what might be approved.”

The agency told Tucci she’d get the receipts but only months after the baby was born.

In the meantime, the agency sent the couple monthly expense breakdowns, showing money reimbursed in categories such as groceries, takeout meals, clothing and communications.

More than $700 a month was approved for groceries.

“The two of us together, I don’t think we spend that much on groceries and this is supposed to be for one person,” she said.

“This kind of made us think, even more of, ‘Wow, where is all this money coming from?'”

Tucci said she feared rocking the boat and turning the pregnancy into a “bad experience,” but she also knew paying a surrogate for anything beyond pregnancy-related expenses could land her in trouble with the law.

“No one wants to be in a situation where they’re caught doing things that they weren’t supposed to be doing without even knowing,” she said. “I am worried.”

Surrogate’s receipts include duplicates, lottery ticket

In another case, an Ontario father’s trust account was billed $5,000 worth of expenses last year, despite the fact his surrogate miscarried within the first month.

CBC News agreed not to publish his name because he fears backlash from the surrogacy community.

When he demanded to see the receipts his agency had reimbursed, he was sent digital images of receipts his surrogate had submitted.

CBC News reviewed them and found a lottery ticket, duplicates, more than $600 worth of expenses from before the father met his surrogate, and nearly $1,700 worth with no visible date.

“We have to play within the rules, and this is not playing within the rules, so it’s putting everybody at risk,” said his lawyer, Sherry Levitan.

“Perhaps give [the surrogate] the benefit of the doubt that she made a mistake. But it’s the kind of thing that should have been caught by the agency. So, it certainly looks like no one is being tasked with the job of looking at [the receipts] critically.”

Surrogate considered an abortion over expense fight

CBC News spoke with more than a dozen surrogates, many of whom said they were motivated by a desire to help families in need.

But one of the women we spoke with confirmed it’s not just legal ramifications couples have to worry about when questioning expenses.

The four-time surrogate described her experience carrying a baby for a New Brunswick couple last year. She isn’t named in this story to protect the privacy of the parents.

“They nickel and dimed for everything,” she said in a phone interview. “It was just bullshit after bullshit.”

During the first three months of her pregnancy, she said, the parents were “nit-picking” over expenses she had routinely claimed in previous surrogacies, such as car payments.

“I was like, ‘OK, I’m done.’ I was going to abort the baby. It was at that point; I was so done,” she said.

“They breached [our contract] by not paying me. So, I figured, ‘Oh, I’m not going to follow the rules.”

She said the arguments with the family were never resolved and ultimately she miscarried near the end of the first trimester.

“Oh my goodness, that’s terrible,” Toronto fertility lawyer Sara Cohen said when told of the dispute. “I think a lot of times people only see the surrogate as being very vulnerable, but the intended parents are very vulnerable, too, because someone’s carrying their baby.”

Cohen said some lawyers draft surrogacy contracts to cover a portion of car payments and car insurance, but she does not.

She said expenses that are incurred before and after the pregnancy should not be considered pregnancy-related.

“Is this an expense she would have incurred but for the fact that she’s pregnant as a surrogate or not?”

Agency says it is ‘extremely diligent’

The five families who shared their stories with CBC News were clients of the same agency — Canadian Fertility Consulting (CFC).

CFC says it is the largest agency in the country. It has roughly 400 ongoing surrogate-couple relationships and oversees some 300 surrogacy births every year.

Owner Leia Swanberg is the only person who’s ever been charged for paying surrogates in Canada.

RCMP raided Swanberg’s Cobourg, Ont., offices and she was charged in February 2013. Later that year, she pleaded guilty to regulatory offences for paying surrogates without receipts and was fined $60,000.

In a recent interview with CBC News, Swanberg said that after the court case she started requiring receipts for all expenditures.

“It was a very relaxed system, and now it is not,” she said. “I will not take that risk for any client or any surrogate, and so I am extremely diligent with my team.”

Swanberg said her agency currently has a finance team of six people who count receipts and reimburse surrogates. CBC News requested a followup interview to address the specific concerns this investigation uncovered, but she declined to comment.

Surrogate feels ‘absolutely treacherous’

In the past two decades, at least a dozen private agencies have opened across Canada. Surrogacy agencies are unlicensed and compete to recruit and retain women they can connect with clients.

While many surrogates told CBC News they tried to keep expenses low to help families, others said they were encouraged by CFC to collect as many receipts as possible to ensure they hit their monthly maximum allowance.

CBC News has agreed not to name these women because they fear legal ramifications.

“It’s a little shady, like a lot shady,” one surrogate said of how she was encouraged to save all receipts so she would reach her monthly limit. “They don’t question it apparently.”

Another surrogate said it wasn’t until she switched from CFC to another agency that she realized some of her reimbursements were probably inappropriate.

“Now I feel absolutely treacherous. It’s not that I regret my last two [surrogacy pregnancies], but it definitely pulls at the heartstrings,” she said.

Another former CFC surrogate, who is now employed at a rival agency, showed CBC News a 2013 message exchange she had with Swanberg’s personal Facebook account.

The exchange is from after Swanberg had been charged but before the court case was finished.

In the exchange, Swanberg’s account encourages her to save receipts “from everyone” in her household.

The surrogate expressed doubt she would be able to reach her monthly expenses limit because she didn’t make enough money at her job to pay for so many things.

Swanberg’s account replied: “If you live w your parents they can start saving receipts now to, we just need them to add up to 18 plus thousand, so if you start now, getting receipts from everyone.”

Swanberg told CBC News she would search her message history to see if she’d sent the message, but never replied. She also declined to comment on the surrogates who said they were encouraged to maximize their reimbursements.

Fertility lawyer Sherry Levitan says her clients have complained about other agencies as well.

“I don’t want to paint all the agencies with the same brush, because there are some that are doing a stellar job,” Levitan said.

“There are some agencies that I know coach their surrogates so that they are able to submit the maximum every month and that aren’t vetting them the way that I would have hoped that they are.”

New regulations coming

In June, Health Canada will introduce long-awaited regulations on surrogate reimbursements, but some legal experts say they likely won’t fix the problems.

The new regulations provide broad categories of what could be considered a pregnancy-related expense, so there is still room for interpretation.

While the rules also introduce a new form to declare expenses, they do not require that parents see the receipts prior to money being reimbursed to their surrogate.

“That’s clearly problematic and the regulations don’t actually help you with that,” Cohen said.

Since 2012 Health Canada has received seven complaints related to surrogacy, but the lawyers who spoke with CBC News suspect some parents don’t report their concerns.

According to Cohen, Canada should decriminalize paying surrogates so parents feel empowered to speak out against suspected wrongdoing without fear of legal consequences.

She also says the agencies should be regulated and licensed like adoption agencies.

“I just think that kind of oversight would be safer for everybody — safer for the parents, safer for the surrogate.”

CBC