Surrogacy, Fertility and
Egg/Sperm Donation
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
- Counselling
- Legal Services
- Maternity Clothing
- Midwife/Doula
- 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;
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.
Important
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.
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