In February, 2012, the RCMP raided the offices of a company in Brighton, Ont., a small town 150 kilometres east of Toronto. It was an unassuming storefront, located in a strip mall in an industrial part of town. That morning, its owner, Leia Swanberg, and three of her employees, were busy doing business – helping would-be parents, surrogates and egg donors navigate the fertility industry – when the RCMP burst in. They seized the company's computers, client files and records.
For the next month, Swanberg – who then went by the name Leia Picard – was not able to communicate with her clients. They included 27 pregnant surrogates, 35 egg donors and all the families depending on them. Those were "the longest 30 days of my life," she recalls.
It would be a year before Swanberg was formally charged and nearly two before she was convicted. She and her company, Canadian Fertility Consulting (CFC), paid $60,000 in fines. Her offences boiled down to paying money to egg donors for their eggs, paying money to surrogates for contract pregnancies and taking finder's fees from an American lawyer who, unbeknownst to Swanberg, was running an elaborate baby-selling ring. All of these are prohibited under Canada's 2004 Assisted Human Reproduction Act, the law governing the world of reproductive technology in this country.
The fine details of that law had long been a matter of debate, mainly because an important piece of the legislation had never been completed. That missing piece – the regulations – would have set out what would qualify as a legitimate expense and what would not. (Reimbursement of expenses is the only money allowed to change hands between parents and the women who help them.)
For instance, can all of a surrogate's groceries be expensed, or just the extra food she eats because she's pregnant? Can her cell phone package be covered, or just the individual calls she makes to the parents and doctors? It mattered, because while some people felt comfortable reimbursing a few tens of thousands in expenses – tossing in car repairs, spa visits, cable TV and all food consumed by the surrogate's family – others were quibbling over parking fees. People wanted clarity. And when Swanberg was charged, many hoped her trial would provide it.
Instead, Swanberg pled guilty. That meant that, although both sides agreed expenses had to be related to the surrogacy or egg donation, and had to have receipts, there still weren't any specifics. "I thought we'd have a legal opinion," says Françoise Baylis, a bioethicist at Dalhousie University in Halifax. "I thought we'd have clarity. I was wrong."
Many also privately hoped the case would make people think more carefully before entering into these complicated, legally ambiguous arrangements with donors or surrogates. But in fact, in the years since the raid and the conviction, the opposite has happened.
But in fact, in the years since the raid and the conviction, the opposite has happened. Everyone from intended parents to lawyers to doctors to legislators seem to have become more comfortable with Canada's peculiar situation. Demand for the sorts of services Swanberg is offering is stronger than ever.
So is Swanberg herself. In Toronto on a recent business trip, she was warm, friendly and upbeat. Seven months into her own pregnancy, she seemed full of energy and hope. And why not? In the wake of her case, she told me, business is booming.
No one collects numbers for how many surrogacies take place in Canada, but it's safe to say there are hundreds every year. Some are arranged privately, mostly online, and some through agencies like CFC.
The central job of an agency is to help people build their families with the help of "third parties" – donors and surrogates. Parents can arrange it all themselves without an agency, through friends or online, but it usually takes longer and feels riskier. Agencies have access to a pool of surrogates and donors – who are in notoriously short supply – and though agencies are completely unregulated, they lend the process a air of security.
The law says it is illegal to take money for "arranging" the services of surrogates, so agencies are careful to avoid doing so. CFC, for instance, only charges clients after a match is made – and only for services other than matching, such as organizing medical and legal appointments, managing money and receipts and making referrals. Canadian Surrogacy Options (CSO), based in Guelph, Ont., and run by Joanne Wright, operates on a similar model. (Swanberg worked for Wright between 2003 and 2007, before starting CFC.) Both charge fees of about $7,500.
Surrogacy in Canada Online (SCO), run by Sally Rhoads-Heinrich in Londesborough, Ont., operates a little differently. It's more like an online dating site, she says, simply giving people the opportunity to meet and get to know each other, but leaving arrangements up to them after that. Its fee is lower, about $5,000.
These leading agencies have all reported an uptick in demand in the past year. Swanberg says that, since she was charged, her business has quadrupled. These days it has 15 employees, some working from Ontario offices, in Cobourg and London, and others from an office in Parksville, B.C., not far from where Swanberg now lives on Vancouver Island. The company is currently working with about 100 pregnant surrogates, and follows up on about 15 to 20 surrogate matches and 30 egg donor cycles per month. (The egg donor side of the business is now managed separately as EggHelpers, by her husband, Scott Swanberg.)
There are a few fertility doctors and lawyers who don't work with Swanberg, but more do now than before her conviction. That's because before the case, many professionals were wary of certain agency practices, uncertain how the prohibition against taking money to "arrange" third party services would play out. And no one had been pushing the envelope more than Swanberg. Many people, when hearing she was facing charges, had expected the violation on "arranging" to be one of them. Notably, though, it wasn't. The silence didn't exactly give agencies the all-clear, but it came close.
Swanberg believes that in many ways the court case cleared the air. "I went from being the dirty little secret who had the surrogates and donors to someone they're willing to have in their clinics to train in best practice."
The key to Swanberg's success may lie in her ability to recruit and retain surrogates and egg donors. On the morning I met her for coffee at a downtown Toronto hotel, she was heading off afterward to a fertility clinic for a workshop with nurses. She and some co-workers wanted to talk about how the donor and surrogate experience could be improved.
"We refer a great deal of clients," she replies when I asked if she had much clout with the fertility clinics. "We work with clinics that understand the importance of our role – that we are often the donor or surrogate's voice."
Like the owners of the country's other major agencies, Swanberg has had first-hand experience on the other side of third-party reproduction. Twice she has acted as a surrogate and six times as an egg donor. She knows the despair of a surrogacy miscarriage and the discomfort of producing too many eggs. She also knows what it's like having your biological child raised by another family; her very first child, born when she was a grade 10 student in foster care, was adopted. She estimates that another 15 biological offspring have been born as a result of her egg donations. Now 41 and on her second marriage, she is about to give birth for the eighth time – to her own fourth child.
In many ways, Swanberg has staked her reputation as an advocate for the surrogate and egg donor women she works with. She runs Sacred Surrogacy retreats, to bring surrogates together so they can share and support each other throughout the experience. She fights in their corner with doctors, and she has worked hard to encourage intended parents to be open about participating in a surrogacy arrangement, rather than treat it as a shameful secret.
"She takes excellent care of surrogates," says Ellen Embury, a fertility lawyer based in Calgary, who represents some CFC clients. "She's the honey pot that attracts the bees."
Many people describe her as "friendly" and "charming." Cindy Wasser, a Toronto fertility lawyer, who not only represents some of Swanberg's clients, but was a satisfied client herself a few years back, says Swanberg helps intended parents and surrogates communicate well with each other. "She does this intermediary social work kind of thing that is really quite amazing."
But others have been less happy, describing her as "abrasive" and even cruel. More than one client has said she has lost her temper with them.
"I'm a work-in-progress on that," Swanberg admitted immediately, when I asked. "I definitely lose my shit."
The surrogates, she emphasized throughout our interview, will always be her priority. "I think many agencies are confused with that because the intended parents [IPs] are paying, they need to be the priority. The IPs are important – absolutely, don't get me wrong, we work very hard to support them through their journey – but ultimately this is the surrogate's body, and our job is to advocate for her to make the best choices for her health. Unless you respect and honour the women doing the work, you won't have a business."