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.
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.
- 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.
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.
…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:
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.
Shirley listened to our needs
We are a gay male Italian couple, and enlisted Shirley’s help with our surrogacy and egg donation journey. From the beginning, Shirley was knowledgeable, compassionate and diligent. She was available on our timetable, and guided us through the many legal issues and complications. Shirley listened to our needs and concerns with sincerity and made us feel secure and heard. We are very happy with her assistance and can attest that you will be in very good hands with her.
GC and SP, Fertility Clients, Italy
Shirley has gone above and beyond...
We are a same sex married couple from Australia, who are now blessed with two beautiful babies born in Ontario via egg donation and surrogacy. From the outset, Shirley was there to guide us every step of the way. She is knowledgeable, available and sincerely interested in helping her clients work through the maze of international surrogacy and fertility arrangements. She was the first person we met in Canada when we began our journey, and assisted us all the way through. Shirley also managed to organize the paper work so we were able to leave Canada and return home within record time after the birth! She has gone ‘beyond and above’ for us in so many ways. We are still in touch with her and our daughters continually hail ‘agoo’ in thanks to her! We highly recommend Shirley and can attest that you will be in excellent hands with her helping you
Happy fathers, AS and JC (and our lovely twins!), Fertility Law Clients, Australia
Shirley is smart, knowledgeable, no-nonsense, warm and approachable
Shirley took on my family law case after my previous lawyer had become a Judge. It had been a complicated and challenging negotiation as my ex and his lawyer were trying to ensure that ‘no stone was left unturned’, even though there was nothing under those stones! Shirley negotiated the final agreement to my very great satisfaction. She ensured that I was regularly informed and that I understood all the issues, and how the facts of my particular case related to the law. Shirley is smart, knowledgeable, no-nonsense, warm and approachable. I was very pleased with the result and felt heard and well taken care of. I highly recommend Shirley, you will be in good hands with her.
SC, Family Law Client, Toronto, Ontario
Thank you for your guidance
I cannot thank Shirley enough for her guidance and wisdom through the negotiation of my separation agreement. There were indeed times I was ready to ‘throw my hands up’, dig my heels in, and take it all to Court. Shirley helped to ground me, and wisely advised that this would not be at all helpful; I would risk losing a lot going to court rather than negotiating-not to mention the high tab it would involve. When I felt down, she helped me to see the ‘silver lining’ and truly encouraged me to ‘hang in there’. In the end, I had an agreement that dealt with all the issues that were important to me, in a way that made sense to me. Thank you, Shirley!
HE, Family Law Client, Toronto
I highly recommend Shirley!
Shirley took on my case after my previous lawyer had become a Judge. It had been a very complicated and challenging negotiation as my ex and his lawyer were trying to ensure that ‘no stone was left unturned’, even though there was nothing under those stones! Shirley negotiated the agreement to my very great satisfaction. She ensured that I was regularly informed and that I understood all the issues, and how the facts of my particular case related to the law. Shirley is smart, knowledgeable, no-nonsense, warm and approachable. I was very pleased with the result and felt heard and well taken care of. I highly recommend Shirley; you will be in excellent hands with her. “
SC, Family Law Client, Toronto, Ontario
Shirley helped me get through a very rough time
I hired Shirley on the recommendation of a friend of mine. The separation was not an easy time for me, and I needed someone strong, who, at the same time, could support me with sincerity and empathy. I was not disappointed. Shirley guided me with patience and understanding through the maze of issues involved in my case (not simple), and negotiated an agreement directly with my ex (also not simple) until the end, when he got a lawyer to review it. Her knowledge, experience and patience, plus how she dealt with my ex, helped get me through this very tough time. I cannot thank her enough and have recommended her numerous times since.
CR, Family Law Client, Toronto
I obtained the agreement I wanted!
I thank Shirley for her guidance, knowledge, and wisdom in settlement negotiations of my separation agreement. It was a difficult time for me, and Shirley helped me every step of the way. She made sure I felt heard, and that my goals and fears were acknowledged. It was important to me to maintain a positive relationship with my ex-husband throughout, and Shirley ensured that happened. Her patience, warmth, and experience helped to keep me grounded and focussed. I obtained the agreement I wanted, and my ex and I continue to co-parent our children with respect. A huge relief is an understatement!
SE, Family Law Client, Toronto
Shirley made this difficult process easy
Shirley Levitan BSc., LLB is phenomenal to work with. Shirley was highly recommended by one of my long-time clients as I was recently going through a divorce. Shirley made this difficult process easy, clear and had it completed fairly quickly. She took the time to explain and guide me through the negotiations, while delivering on everything she had promised. I would recommend Shirley Levitan BSc., LLB to anyone going through a divorce, as she is very knowledgeable and truly works for the best interest of her clients. She not only makes a difficult situation easy but makes herself available to answer any questions or concerns one may have. Shirley, I can’t thank you enough for your help and alleviating a lot of stress from my divorce. Thank You
PS, Family Law Client, Toronto
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