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  • James Anderson

2022 Federal Budget & Fertility Law

The 2022 Federal Budget is proposing two new Medical Expense Tax Credits that will help people form families. Below is an excerpt from the 2022 Budget:

Help for Canadians Who Want to Become Parents

Across Canada, there are those who are facing challenges on their journey to become parents. Whether facing fertility issues, being part of a same-sex couple, or just wanting to be able to be a mom or a dad on their own terms, some Canadians rely on surrogacy and expensive procedures in order to build the family they dream of. But currently the Medical Expense Tax Credit is not available to those who need to pay medical expenses of others in order to become a parent.

  • Budget 2022 proposes to allow medical expenses related to a surrogate mother or a sperm, ova, or embryo donor that are incurred in Canada for 2022 and subsequent taxation years to be claimed. This would include costs that have been reimbursed to a surrogate for in vitro fertilization expenses.

  • Budget 2022 also proposes to allow fees paid to fertility clinics and donor banks in Canada in order to obtain donor sperm and ova to be eligible under the Medical Expense Tax Credit for 2022 and subsequent taxation years.

Canada's Assisted Human Reproductive Act, establishes an altruistic regime for sperm donation, egg donation, and surrogacies. What that means, is those donating gametes (eggs or sperm), or offering their services as a surrogate, cannot be paid, remunerated or in any way profit financially from their involvement. However, the Act does permit certain expenses to be reimbursed. These expenses can be significant, especially if in vitro fertilization is required.

Expanding the Medical Expense Tax Credit to include in vitro fertilization expenses, fees paid to fertility clinics, and fees paid to Canadian donor banks (to obtain eggs and sperm), will undoubtedly increase the demand for donor agreements and surrogacy agreements, since the intended parents will be able to receive a tax credit / refund.

The right to form a family is enshrined in international human rights law. For example:

  • Article 23 of the International Convention on Civil and Political Rights, for example, states: "The right of men and women of marriageable age to marry and to found a family shall be recognized."

  • The International Convention of Economic, Social and Cultural Rights refers to the family as "the natural and fundamental group unit of society."

  • The Yogyakarta Principles (a restatement of existing international human rights as they apply to the LGBT community), states in principle 24: "Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subject to discrimination on the basis of the sexual orientation or gender identity of any of its members."

The point that I am trying to make is, people who wish to form a family, and cannot do so through intercourse, should not face an overwhelming financial obstacle to realize their dreams. While it may be too early to predict the impact that the Medical Expense Tax Credit will have on a person's finances, this is a very welcomed initiative.

If you are interested in discussing fertility law, and the services that I offer (such as donor agreements and surrogacy agreements), please feel free to contact my office.

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