Surrogacy, Fertility and
Fertility Law in Canada
As an expert in the field of fertility law for over 25 years, Shirley Levitan understands the changing legal landscape and works closely with clinics, hospitals, intended parents, ova and sperm donors, gestational carriers and traditional surrogates.
Shirley believes in open communication and encourages her clients to ask questions to better understand the law.
Learn more about Surrogacy with Shirley
Gestational Carrier/Surrogate Agreements: What you need to know.
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 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 in accordance with regulations, and a receipt must be provided for the expense.
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 Regulations, and a receipt must be provided. The Regulations became law on June 9, 2020. The list of expenses set out in the Regulations is not exhaustive. A guidance document (which is not law) that helps explain the application of the Regulations can be found here.
Example Expenses Paid
Some of the expenses that can be paid to a surrogate, as set out in the Regulations:
- Travel, Meals, Parking, Accommodation
- Care of dependents or pets
- Legal Services
- Maternity Clothing
- Groceries (excluding non-food items)
- Health, Disability, Travel, Life insurance
- Products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or postpartum period (does not need to be a doctor, can be a midwife or nurse)
- Loss of work-related income during the pregnancy provided, a licensed physician certifies in writing that continuing to work poses a risk to the health of the woman or fetus
As an experienced fertility and 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.
Donors: What you need to know.
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 the purchase of ova or sperm from a donor or from anyone on behalf of the donor is illegal. However, expenses can be reimbursed per the Regulations noted above,
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
Ontario 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 Ontario 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;
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 prevent misunderstandings.
Frequently Asked Questions:
Surrogacy, Fertility & Egg/Sperm Donor
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. Contact Shirley Levitan for more information on fertility law.
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 for reimbursement of loss of work-related income to a surrogate IF, in the written opinion of the attending doctor, 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 confirmation of a signed agreement for their records before the embryo transfer occurs. 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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