Intended Parents
Let’s make it official.
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.
What you need to know.
Aspects of fertility law in Canada are governed by the Assisted Human Reproduction Act, SC 2044, c.2 (the “Act”). This is a federal Act and applies across Canada.
Surrogacy and egg/sperm donation in Canada are legal, but paying 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 to a surrogate or donor in accordance with regulations, and a receipt must be provided for the expense.
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 various issues that are important to consider in a surrogacy arrangement.
Of notable importance is 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 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.
LGBTQ+
As a result of the changes to Ontario parentage laws, which came into effect as of January 2, 2017, a number of legal challenges that were facing the LGBTQ community in the context of legal parentage have been resolved.
For example:
- The non-birth parent in a Lesbian couple no longer needs to adopt her partner’s child or pursue a parental order to 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 preconception 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 seven days after the date of birth of the child; this applies to up to four intended parents, regardless of gender.
Additional information:
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 Ontario law allows for each man 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.
Lesbian couples...
…may turn to either a sperm bank for an anonymous sperm donor or a friend for a known sperm donor. When a 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. Most clinics, if not all, will want confirmation from your lawyer that a written agreement was entered into.
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.
Regarding parentage in surrogacy situations, Ontario 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 may still be obtained as some intended parents may require it or want it.
Contact Shirley to assist with ensuring the birth of your baby is properly registered.
Frequently Asked Questions:
Intended Parents
It is important that you have accurate information and seek the advice of an experienced fertility lawyer. Let us help you by providing the information you need to make good decisions and by creating the agreement that best suits your personal situation. Contact Shirley for additional information.
Are surrogacy, egg donation and sperm donation legal in Canada?
Yes. Surrogacy, egg, and sperm donation are legal in Canada. Payment of a fee for these activities, however, is NOT legal.
What is the difference between a ‘traditional’ surrogate, and a ‘gestational’ surrogate?
- A ‘traditional’ surrogate is a woman who carries a child that is her biological child.
- A ‘gestational’ surrogate is a woman who carries a child that is not her biological child.
Can I pay anything to a surrogate, or egg/sperm donor, in Canada?
Yes, you can pay expenses pursuant to Regulations that became law on June 9, 2020, and a receipt is required. For further information, review the Fertility Law section of my site.
Can the surrogate’s loss of work-related income be reimbursed?
The Assisted Human Reproduction Act, which is legislation governing surrogacy in Canada, provides a section for reimbursement of loss of work-related income to a surrogate IF, in the written opinion of a licensed physician, continuing to work poses a risk to the health of the surrogate or the fetus.
Can the egg/sperm donor’s loss of work-related income be reimbursed?
The Regulations do not provide for this expense, but the Guidance Document states that such an expense can be reimbursed provided the requirements are met for loss of work-related income to a surrogate (ie, a licensed physician must certify that working is a risk to the donor’s health).
Do I need an agreement to enter into a surrogacy arrangement?
Clinics and doctors will require written confirmation from your lawyer that there is a completed, signed agreement before the embryo transfer occurs, and as often as not, even before the surrogate’s medical protocol starts. The agreement sets out the expectations of all concerned and is a useful and helpful way of dealing with many issues that may otherwise not be considered and discussed in advance.
Can the surrogate and intended parents use the same lawyer for the agreement?
No. The Intended Parents should have one lawyer. The surrogate should have a different lawyer. This is to ensure all concerned have legal advice that is independent, and without conflict to the other’s interests.
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