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Surrogacy & Fertility 2017-03-10T03:36:38+00:00

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Fertility Law In Canada
Surrogacy Law In Canada
Information For Donors
Information For Intended Parents
Gestational carriers/surrogates
LGBTQ Issues
Medical Consent
New Ontario Parentage Law
Legal Opinions

Fertility Law in Canada

Aspects of fertility law in Canada are governed by the Assisted Human Reproduction Act, SC 2004, c.2 (the “Act”). This is a federal Act, and applies across Canada.

Surrogacy and egg/sperm donation in Canada are legal, but payment of a fee for this assistance is NOT legal. Therefore, the Act:

  • Prohibits payment of a fee to a surrogate or egg/sperm donor.
  • Provides for payment of expenses in accordance with regulations, and a receipt must be provided for the expense.

To date, the section of the Act (including the related regulations) that deals with expenses (Section 12) is not yet law, and we do not have a definition of what these expenses are. However, the Federal Government is in the process of considering what should be included in the regulations, and so they may be in place in 2017.

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As of January 2, 2017 – new Provincial laws are in effect.

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Surrogacy Law in Canada

There are two types of surrogates:

  • Traditional surrogate. A woman who carries a child that is her biological child.
  • Gestational surrogate (or gestational carrier). A woman who carries a child that is not her biological child.

Surrogacy in Canada is legal; however, it is illegal to pay a fee to a surrogate mother.

Section 12 of the Act makes provision for payment of expenses to a donor or a surrogate, pursuant to regulation, and a receipt must be provided. However, this Section is not yet law, and there are to date, no draft regulations for this Section, or legal definition of what ‘expenses’ means. Therefore, until the Federal government introduces the regulations that will set out which expenses are allowable, one must be mindful that ‘expenses’ are reasonable and incurred in connection with the surrogacy. For example:

  • Maternity clothing,
  • life insurance premiums,
  • legal fees,
  • medical fees not covered by OHIP,
  • travel and parking fees associated with the various medical appointments,
  • And other expenses incurred in connection with the surrogacy.
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Information for Donors

Ova and Sperm Donation and Agreements

Certain aspects of ova/sperm donation are dealt with in the Canadian Assisted Human Reproduction Act. The Act states that purchase of ova or sperm from a donor, or from anyone on behalf of the donor, is illegal. However, expenses can be reimbursed. As with surrogacy, there is no legal definition for expenses yet.

Two types of ova/sperm donation exist:

  • Known donation – the identity of the donor is known.
  • Unknown or anonymous – the identity of the donor is not known

A new law has been introduced into Ontario, and is now in effect. The law provides, amongst other things, that a donor using assisted reproduction is not considered a legal parent. It also provides that if a donor donates using sex, he is not a parent IF there is a preconception written agreement.

In cases of known ova/sperm donation, despite the new law, it continues to be wise to get a written agreement between the intended parents and the donor, as there are other issues that would be dealt with, including: a) any required testing; b) medical disclosure; c) expenses; d) control of information; and e) intent for future contact with the child, if any.

With unknown donors, some clinics may require an agreement, and others may require written confirmation from a lawyer that you have been advised of the legal issues involved. More and more frequently, unknown donors are agreeing for his/her identification to be disclosed to the child once the child reaches 18.

It is important that both the donor, and the recipient(s) seek their own separate lawyer who is experienced in reproductive technology to assist with the legal issues involved with ova/sperm donation, and ensure they are aware of what is involved, and to prevent misunderstandings.

As an experienced reproductive technology lawyer, Shirley can assist you with the agreement, so as to ensure there is clarity amongst all involved, and to prevent misunderstandings along this very emotional journey.

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Information for Intended Parents

Overview

Building a family using third party assisted reproductive technology is an exciting, yet challenging journey. As an intended parent, you want to know that you are legally guided, directed and protected every step of the way. Shirley will review the law with you, as well as provide practical guidance. Clinics will require a written agreement between you and the gestational carrier/surrogate to be signed before the embryo transfer. As an experienced fertility lawyer, Shirley will prepare your agreement, which will set out the many and various issues that are important to consider in a surrogacy arrangement. Of notable importance is the recent change to Ontario parentage legislation which provides that such an agreement may be used as evidence of the intended parent’s intention to be a parent to the child contemplated in the agreement and the gestational carrier’s/surrogate’s intention not to be a parent. The agreement will be suited to your specific needs and goals, taking into account the ever-changing legal landscape in Canada! If you are using the help of a sperm or ova donor, depending on the particular situation, an agreement between you and the donor may also be required.

Shirley will ensure you are protected and that the agreement you need includes all you concerns and priorities. From pre-conception to the pregnancy journey, to the post-birth process of registering your baby’s birth, Shirley is her to guide you throughout!

Birth Registration and Parentage Declarations

In Canada, each Province has its own laws regarding how a child’s birth is registered, including the situation in which a gestational carrier is the birth mother. The most surrogate friendly provinces, from a birth registration perspective, are Ontario and British Columbia.

For anyone considering a surrogacy arrangement – where the child is to be born – should be considered before the surrogacy arrangement is entered into. For non-Canadians considering using a Canadian surrogate you must consider:

  • The birth registration laws of the Province in which the child will be born
  • The citizenship and parentage laws of your home country.

Ontario’s new parentage laws are now in effect. Regarding parentage in surrogacy situations, the new law provides that a birth can be registered in the names of up to four (4) people without the need to get a post-birth parental Court order IF:

  • There is a pre-conception written agreement, with opposing sides having independent legal advice
  • The gestational carrier signs a consent no earlier than 7 days after the date of birth.

If these criteria are not met, a post-birth parental Court order is required to establish parentage with the intended parents. However, even with a pre-conception agreement, a post-birth Order can still be obtained as some intended parents may require it.

Contact Shirley to assist with ensuring the birth of your baby is properly registered.

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Information for Gestational carriers/surrogates

Gestational Carrier & Surrogacy Agreements

As a surrogate or gestational carrier, you are literally giving the gift of life!

To do this wonderful act you are clearly a generous person, and therefore you want to ensure the agreement you enter into with the intended parent(s) is fair. We are here to review your agreement for you, and to ensure you feel heard and protected.

A fee cannot be paid to you because it is illegal in Canada; however, expenses can be paid. So far, there is no legal definition of what ‘expenses’ mean, and the general rule is that if it is incurred in connection with the surrogacy, and it is reasonable, then it generally can be paid.

As an experienced reproductive technology lawyer, Shirley can assist you with the agreement, so as to ensure there is clarity amongst all involved, and to prevent misunderstandings along this very emotional journey.

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LGBTQ

Lesbian couples may turn to either a sperm bank for an anonymous sperm donor, or a friend, for a known sperm donor. As result of the new Ontario parentage laws, which are in effect as of January 2, 2017, a number of legal challenges facing the LGBTQ community in the context of legal parentage have been resolved.

For example:

  • A lesbian non-birth parent no longer needs to adopt her partner’s child or pursue a parental order and will be legally recognized as a parent.
  • A donor using assisted reproduction is not considered a parent
  • A donor using sexual intercourse is not considered a parent, provided there is a written pre-conception agreement to this effect
  • A post-birth parental court order in a surrogacy birth will no longer be required in Ontario IF: i) there is a pre-conception written agreement; ii) there is independent legal advice on both sides of the agreement; and iii) the surrogate must sign a consent waiving all parental rights no earlier than 7 days after the date of birth of the child; this applies for up to 4 intended parents, regardless of gender.

When the sperm donor is known, it has been the usual practice for the recipient(s), and the donor, to enter into a sperm donor agreement. In this way, all expectations and intentions are reduced to writing.

Gay male couples require both an ovum donor and a gestational carrier. If the ova donor is known, an agreement should be obtained, setting out the intent of all concerned. An agreement will also be required with the gestational carrier. In some situations, both men in the couple will donate sperm so as to create a variety of possibilities, including having twins such that each man in the couple is the biological parent of one twin.

If you are coming from another country, it is imperative to review the birth registration and citizenship laws of your home country, as that will be a guide with respect to how the birth of your child should be registered in Ontario. While the new law will allow for both men in the couple to be recognized as the child’s legal parent without having to pursue a post-birth parental court order (if the child is born in Ontario), your home country may require a post-birth parental order regardless, and we can obtain that for you.

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Medical Consent

All Clinics will require that the participants in an assisted reproductive technology arrangement sign the appropriate medical consent. The consent(s) will be tailored to the particular assisted reproductive procedure that applies.

  • For example, whether it be in vitro fertilization, ICSI, assisted hatching, and so on.

Generally, there will be language in the consent(s) which will require the patient(s) to confirm that:

  • They have been fully explained the procedure
  • They understand the risks and benefits associated with the procedure examinations, and drug therapies that are involved
  • All their questions have been answered to their satisfaction.

Consent(s) with respect to the creation of embryos will also generally deal with what is to be done with unused embryos, including the situation of separation of the couple involved in creating the embryos

Regulations under section 8 of the Assisted Human Reproduction Act (the “Act”) became law at the end of 2007.

The Regulations set out the specifics of the type of written consent a person needs to provide before making use of human reproductive material for the creation of an embryo. Various consent(s) can be withdrawn in writing, but only under certain circumstances, depending on whether or not the embryos are to be used for the donor’s own purposes, or for reproductive use of a third party.

As an experienced fertility lawyer, Shirley has the knowledge and insight to:

a) Assist Clinics wishing to create new consents, or revise current ones

b) Assist patients who wish to review the consent(s) with a lawyer before signing so as to understand the legal issue(s) involved.

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Changes to Ontario’s Parentage Laws

There is new Ontario parentage legislation as of January 2, 2017. Changes include the following:

  1. A donor is not a parent by virtue of donating using assisted reproduction.
  1. A donor is not a parent by virtue of sex, provided there is a preconception written agreement.
  1. In a surrogacy situation, a birth can be registered in the names of up to 4 people without the need to get a post-birth parental Court order (declaration of parentage). This includes same-sex intended parents. This applies ONLY if there is a pre-conception written agreement, with opposing sides having independent legal advice, and the surrogate must sign a consent no earlier than 7 days after the date of birth.
  1. A surrogacy agreement may be used as evidence of a) an intended parent’s intention to be a parent of a child contemplated in the agreement; and b) a surrogate’s intention to not be a parent of that child.
  1. A post birth Court parental order (declaration of parentage) must be obtained if there is no pre-conception written agreement with independent legal advice on both sides.
  1. A lesbian non-birth parent no longer needs to adopt her partner’s child or pursue a parental order and will be legally recognized as a parent.
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Legal Opinions

In numerous situations, opinions regarding reproductive technology may be required. Various consulates, government offices dealing with birth registration and parentage, other lawyers, and judges may all request these opinions, particularly when encountering birth registration laws that are different in their particular jurisdictions.

For example, a Judge in another country may wish an opinion on parentage laws of Ontario in order to understand how a non-biological parent is named as mother or father on the child’s birth registration documentation.

In addition, Clinics, Agencies or individuals may require a legal opinion with respect to reproductive technology legal issues.

It is of the utmost importance that a lawyer familiar with the relevant legislation and case law be enlisted to prepare such an opinion. Shirley has extensive experience preparing these opinions for authorities in different countries, including Consulates and Judges and is available for consultation.

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