Dartmouth couple takes on CRA over surrogacy costs

A Dartmouth, N.S., couple who turned to surrogacy to become parents is challenging the Canada Revenue Agency in court in a bid to reduce the cost of the process.

"After waiting so long for a baby, and so long not thinking that we would ever, ever get lucky enough to have a baby, that day was just amazing," said Shelly Lyn Maynard, whose first child, Oscar, was born via surrogate in January.

Maynard and her husband, Mark Foley, are now pursuing a Charter of Rights and Freedoms challenge to try to change what they claim is an inequality in the Income Tax Act. The act doesn't allow families using surrogates to recoup legal and some other costs. 

"I would hope eventually that it would be more attainable," Maynard said. "This is a process that costs a lot of money and a lot of couples don't have that money, and not a day goes by that I don't think about that.

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"We're very fortunate that we were able to use surrogacy to build our family and find our surrogate and work with them to have a child. So I would hope that it's more attainable for more families."

Unexplained pregnancy loss

Maynard and Foley began trying to have children after their marriage in 2013, but endured four miscarriages over the next three years. 

They tried in-vitro fertilization. Although the embryos were healthy, the attempts to transfer them into Maynard's uterus didn't succeed, and doctors couldn't explain why.

Maynard, a critical-care nurse, and Foley, an emergency-room doctor, decided to turn to a surrogate to carry their child to term. 

Surrogacy in Canada

When a child is born through a surrogate in most Canadian provinces and territories, the woman is the legal mother at birth. The intended parents must go through either an adoption process or court proceedings to become the child's legal parents.

In those cases, there are legal fees and agency fees involved.

In a regular adoption, the parents could recover some of those costs through an adoption tax credit. Families who use a surrogate cannot recover similar costs. 

Mark Foley applied for the adoption tax credit on his income tax return, but was denied by the CRA. He estimates receiving the tax credit would make a difference of up to $5,000 to his family. 

In an email, a CRA spokesperson said the organization isn't able to comment on the details of Foley's case as it's before the courts.

However, the agency says, under the adoption tax credit, a parent who adopts a child can claim some expenses up to a maximum of $15,905, such as fees paid to an agency licensed by a provincial or territorial government. 

Last year, about 1,590 people claimed the adoption tax credit.

Foley hasn't kept track, but estimates his family has spent more than $100,000 in their attempts to have a baby — a cost that is not unusual for parents who pursue in-vitro fertilization and surrogacy.

Foley said ultimately he would like to see all related treatments covered as medical expenses, but thinks changing the adoption credit would be a good start. 

"To me it's just logically unfair," he said. "It's something that should be considered … a medical illness, an inability to conceive. It's not something that you can predict." 

'I think everybody deserves to have a family'

Halifax resident Beth Roberts was the surrogate for Oscar. Previously, she was a surrogate for another family.

Roberts said she has found the experience rewarding, and believes if the cost of surrogacy were lowered for the intended parents, most women who choose to become surrogates would see it as a positive arrangement. 

"I think that there is a double standard as far as what couples go through in surrogacy versus adoption," she said. "Sometimes it's more cost effective for surrogacy and other times it's more cost effective for adoption. I think it depends on the situation."

Some examples of Roberts's costs that were covered by Maynard and Foley during the pregnancy included a special diet and medication, as she developed gestational diabetes.

Other costs included lost wages if she felt too ill to go to work or the cost of help around the house for activities like shovelling snow. 

"I think everybody deserves to have a family and however they want to build their family is their own choice. I don't think it should cost tens of thousands of dollars to have a child," Roberts said. 

Purpose of the tax credit

Ted Sawa, one of the lawyers acting for the family, said the original purpose of the adoption tax credit was to lessen the expense for families. 

"Back in 2005, the Income Tax Act was amended to provide relief for couples who choose adoption to have a child," he said. "Back when that occurred, the budget speech at that time said that a fair tax system evolves over time to reflect changes in the economy and society."

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Sawa's firm usually handles 12 to 24 surrogacy cases at any given time.

"In 2005, the government decided that people who chose adoption to have a child should find some relief for the expenses through the tax system," he said.

"The government should also modernize the tax system now to provide similar relief for people who choose to have a child through a surrogacy arrangement."

Maynard's and Foley's case is scheduled to be heard in the Tax Court of Canada in April. 

But before they can deal with that, there's a much more important day for them to get through: their second baby arrives in March, also by surrogate.

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