According to the Ontario Ministry of Children and Youth Services, each year tens of thousands of hopeful parents turn to assisted reproductive technology (ART) and fertility support in order to grow their families. In some of these cases, intended parents turn to a third party for help, whether through sperm donation, egg donation, and/or surrogacy. Third party reproduction can be an option for heterosexual parents when the intended father has no or low sperm count, when the intended mother’s eggs are not viable or when she cannot gestate the fetus to term, or when the intended parents want to avoid passing along an inherited condition to their child. Third party reproduction can also be a viable option for single, gay, and lesbian intended parents. Regardless of your particular situation, intended parents, surrogates and donors need legal protection as they navigate these complicated legal waters.

Assisted Human Reproduction Act & the Changing Legal Landscape

The legal landscape of third party reproduction has undergone significant change in the last several years, creating confusion among intended parents, donors, and potential surrogates. Here is a brief look at some of today’s issues.

Compensating Third Parties in the ART Process

At one point, hopeful parents could access third party reproduction services by purchasing eggs and sperm or by paying for the services of a surrogate mother (traditional or gestational carrier). Today, however, the Assisted Human Reproduction Act (AHRA) prohibits intended parents from paying a third party for any aspect of third party reproduction, although intended parents can reimburse the third party for their reasonable out-of-pocket expenses related to donation or surrogacy, such as travel expenses and fertility medication. The financial obligations and expectations of intended parents, donors and surrogate mothers should be clearly defined in an agreement signed by all parties, for which each has received independent legal advice.

Compensating the Intermediary Between the Intended Parents and Third Party

Before the AHRA was enacted, intended parents could also access many professional services to be paired with egg donors, sperm donors, embryo donors and surrogate mothers. Now, however, the AHRA prohibits anyone from acting as an intermediary, or “match-making” service, if you will, for connecting intended parents with donors and surrogate mothers. As a result, hopeful parents must find their own third parties, a journey that means legal protection for all involved is even more critical in order to avoid ramifications—legal and otherwise—from the third party reproductive process.

Parental, Donor, and Surrogate Rights & Responsibilities are Unclear and Undefined

To add to this confusion, there is no legislation or case law in Ontario that specifically identifies the rights and responsibilities of intended parents, donors, or surrogate mothers. In the absence of legislation and case law, legal protection through a signed agreement should be a non-negotiable item if you’re considering building your family through third party reproduction. Why?

• Prospective parents must have legal protection so egg donors, sperm donors, embryo donors and surrogate mothers cannot claim parental rights over the child they helped to create.

• Donors and surrogate mothers must be ensured that any legitimate expenses are reimbursed to them or paid for directly by the intended parents; further, they need protection from parental responsibilities.

Given the legal vacuum in which the parties are operating, the agreement should contain a provision where it is acknowledged and agreed that the procedures contemplated by the agreement are novel and new and that the law relating to such procedures and relationships is still developing and remains unsettled at this time. Further, the agreement should state that although the possibility exists that the agreement may be declared by a court to be void as against public policy, in whole or in part, and/or may be held to be unenforceable, in whole or in part, all of the parties nonetheless agree that they are entering into the agreement with the intention of being fully bound by its terms.

Where Do You Turn for Help?

If you’re starting a family and have found that relying on a third party and assisted reproductive technology is your next step, leave a comment and let us know about your experiences in navigating the changing legal landscape. Or, if you’re a potential donor or surrogate, what do you see as barriers to helping intended parents start their families?