Along with real life comes, amongst other things, questions and conundrums. For instance, a lesbian couple is embarking on having a child. One of the women (let’s call her “Mary”) will provide her egg to fertilize with donor sperm. The resulting embryo will then be implanted into her partner (let’s call her “Jane”) for gestation. The question has been asked: is Jane a surrogate, and if so, how do they paper the arrangement?

This is not merely a theoretical question. Fertility clinics are sticklers when it comes to getting the proper legal consents, verifying the contracts among the players, and generally crossing the t’s and dotting the i’s. So if there’s even a whiff of Jane being a surrogate, it raises the question of whether a surrogacy contract might be called for.

In my view, Jane is NOT a surrogate.

Let’s start with the following: in any birth situation you have three potential “mothers”:

  1. the genetic mother, who provides the egg;
  2. the birth mother, who gestates the fetus and gives birth; and
  3. the “intended” mother, who raises the child (unless the intended parent(s) are male).

Ontario law provides that the person who gives birth is presumed to be the child’s parent. This presumption does not apply in the situation of a surrogacy. (A history of what a “parent” means in Ontario reflects years of case law which provides, particularly in cases involving assisted reproduction, that “intent” trumps biology. This history is codified in the amendments to Ontario’s Children’s Law Reform Act, which came into force as of January, 2017.) Let’s clarify with the following: the birth mother in a surrogacy situation is NOT an intended mother. She is gestating on behalf of third parties, and will deliver the child, upon birth, to the third party intended parents — the people who will raise the child. Obviously Jane has no plan to do that. Jane is gestating the child on behalf of both herself and her partner. Jane has no interest in providing this child to a third party. Jane is the birth parent AND an intended parent — she is not a surrogate for Mary! Jane is Mary’s spouse, and will raise the child, together with Mary, the other intended parent (who, in this scenario, is also the genetic parent). This is not a surrogacy arrangement, and therefore a surrogacy contract is not appropriate.

What happens if Mary and Jane break up during the pregnancy? Then the following question arises: do Mary and Jane have different rights vis-a-vis the resulting child? The answer is: no! The amended Ontario law provides that if you have a spouse at the time of conception, which is defined as when the embryo is implanted in assisted reproduction situations, then the birth parent and the spouse of the birth parent are considered the parents (assuming this is not a surrogacy or multi-parent situation). Jane and Mary would therefore each enter the custody fray as a “parent,” with all the rights and responsibilities this entails — including the obligation to pay child support.

Which leaves the clinics, lawyers and parents-to-be with the following question: what do Jane and Mary then sign if this is not a surrogacy arrangement? What they should enter into, in my view, is a “Co-Maternity Agreement.” They will both be mothers, and this type of agreement will help to clarify this reality, amongst other issues.

For advice on family and fertility law issues, contact Shirley Levitan.