Gestational Surrogacy an Increasingly Common Choice for Intended Parents

Gestational Surrogacy an Increasingly Common Choice for Intended Parents

Late last summer, comedian Jimmy Fallon announced that he and his wife had a new baby girl, Winnie Rose Fallon, who was brought into the world with the help of a gestational surrogate. While many people reacted with surprise to their news, the Fallons are far from the first parents to rely on a gestational surrogate. The Fallons’ announcement, however, sheds light on an increasingly common way for partners to expand their families. In fact, according to the TODAY show, more couples are choosing gestational surrogacy than ever before. As surrogacy becomes more and more mainstream, it will be important for intended parents to fully understand all of the implications and ramifications of selecting this third party reproductive option and why legal guidance is absolutely critical.

Legal Parentage Matters

In 2012, a set of intended parents in Winnipeg had their lawyer draw up an agreement that they felt would establish them as the legal parents of their children who were to be born through surrogacy. Their gestational surrogate became pregnant with twins and the couple began planning and preparing for their children to arrive. Their planning, however, did not include the legal struggles they would face following the birth of their children. The gestational surrogate delivered twin boys, but due to the nuances in and interpretation of Manitoba law, the intended parents were surprised to discover that they had no legal right to the children. That is, they could not be registered as the legal parents of their children. In that province, the birth registry lists the woman who delivered the child as the legal mother, regardless of the surrogacy agreement the intended parents and the surrogate mother entered into.
These intended parents travelled an expensive and confusing legal journey to transfer parentage of their twin boys. Beyond the costly nature of this process, the question of legal parentage could have negative ramifications for the custodial parents: what if one of the children should require medical attention? Who is legally allowed to provide consent for those procedures? Consider, too, the woman who thought she was serving the couple as a gestational surrogate; she now finds herself the unwitting legal parent to twins. In spite of their agreement, the laws were not on their side.
Canadian parentage laws differ across provinces, with Quebec on one side, openly discouraging surrogacy, and British Columbia on the other, recently passing legislation to help define legal parentage in surrogacy cases. While the Winnipeg parents thought they had covered their legal bases, they found themselves in murky legal waters. A complete and thorough understanding of parentage and surrogacy—with guidance from a fertility lawyer whose experience covers your province’s specific laws—is critical to establishing and maintaining legal rights to the children who are born through surrogacy. As gestational surrogacy becomes a more common choice in Canada, the legal landscape will continue to evolve… making legal guidance from an experienced fertility lawyer an even more important factor for intended parents and surrogates alike.

Intended Parents, Donors, and Surrogates Need Legal Protection

Intended Parents, Donors, and Surrogates Need Legal Protection

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?

Sperm Donation in Canada:  An Overview

Sperm Donation in Canada: An Overview

As it stands today, there are three types of sperm donations in Canada:

  1. Anonymous;
  2. Identity disclosed; and
  3. Known.

These three types of sperm donations present their own benefits and drawbacks to the donor, the intended parents, and the resulting children.

  1. Anonymous Donation

Although health and physical information is divulged, With anonymous donation the identity of the sperm donor is kept strictly confidential from the recipients and resulting children.

  1. ID Disclosed (Open ID) Donation

ID disclosed donation leaves the door opened to children resulting from the donation to contact the biological father.  While donors are not expected to have social contact with registered children until they are 18, the donors are, at a minimum, obligated to provide an update of their family medical history.  Any other information or contact is strictly optional and at the donor’s discretion.

For anonymous or ID disclosed donations, Health Canada regulations prohibits the following men from participating in semen donation:

  1. Men over the age of 40; and
  2. Any man who has had sex with another man, even once, since 1977.

Known sperm donors can bypass both of these exclusions.

3.     Known Donation

A known donor can be a friend or family member of the intended parent(s).  It is the only viable option for gay men wanting to assist other intended parents who wish to build a family as they can circumvent the Health Canada restrictions on anonymous or ID disclosed donations.

Because a known donor can be a relative of one of the intended parents, it allows parents-to-be in need of third party gametes to have a genetically-related child.  Of course, known sperm donation also raises many difficult moral and ethical questions.  For instance, should a father donate sperm to his son?  Known donation also allows the parent(s) to select a donor of a certain ethnicity or cultural background that may be unavailable through anonymous or ID disclosed donor selection.

Making the Cut

The application process for sperm donation is the same for all donors.  The sperm donor application takes about 6-8 months.  On average, the sperm donor produces 10-15 vials of semen.  The process is as follows:

  1. The donor is screened for infectious disease, undergoes a general physical examination and provides a full medical history.
  2. The sperm quality is assessed to ensure it can be used during fertilization.
  3. The sperm is frozen for 6-months as required by Health Canada regulations, after which the sperm donor provides further blood samples for a final disease check. (Sperm is only quarantined if the donor is not in a sexual relationship with the recipient).
  4. The semen is stored for general (anonymous donor or ID disclosed donor) or private (known donor) use and shipped to the recipient parent’s clinic.

The Price of Sperm

A vial of sperm costs on average between $400 and $800.  The cost of known donations is about 50% less than anonymous, or ID disclosed donations.  Sperm vials do not have to be purchased, and sperm can be used in any subsequent pregnancy attempts without having to repeat the entire selection process and pay for associated costs.

In addition to the cost of sperm, recipients should plan to pay about $300 per intrauterine insemination (IUI).  In IUI, washed and filtered sperm are injected into the uterus when a woman is ovulating.  The procedure can be performed by a family doctor.

Sperm Donor Identity

Should the identity of sperm donors be made available upon request?  This crucial and complex question is still being widely debated in Canada, most recently in British Columbia, where a young woman conceived using donor sperm is seeking to have the identity of her donor father revealed, contrary to the position of the B.C. government.  The Supreme Court of Canada will decide this case and the fall-out of the decision will be wide-reaching.  Read more about this case.

Like any issue worth debating, there are two sides to the argument.  Some take the position that the majority of donors who participate in the program rely on the anonymity, and that mandating identity disclosure will discourage potential donors, thereby depleting Canada’s already woefully low supply of local sperm.  Others argue on behalf of the child, stating that children of assisted reproduction have a right to know their biological parents or background, as do adopted children.  Others who take a more middle ground argue that the private agreements between donor and recipient should define identity revelation and parental involvement in the child’s life.

Legal Differences and Legislative Trends

There are significant legal differences between anonymous, ID disclosed and known sperm donation in terms of parental rights.  Further, these rights vary from province to province depending on the legislative scheme.  For instance, the legal parentage provisions in British Columbia’s new Family Law Act, which became law in November 2011, deal specifically with parentage in situations of assisted conception (defined as “a method of conceiving a child other than by sexual intercourse”) and state in section 24 that a sperm donor is not, by reason only of his donation, a legal parent.  In addition, section 27(3) states that, in addition to the child’s birth mother, a person who was married to, or in a marriage-like relationship with, the child’s birth mother when the child was conceived is also the child’s parent provided that the person consented to being the child’s parent.

British Columbia’s legislation follows an important national and international trend towards affirming that in the context of assisted reproduction, the genetic link between donor and the child does not constitute a claim to parenthood.  Alberta (section 7(4) of the Family Law Act) and Quebec (article 538.2 of the Civil Code) also have legislation clearly stating that a sperm donor is not a legal parent and that the child’s second parent in cases of assisted reproduction is the mother’s partner.

Ontario’s Family Law Act has not undergone the necessary reform.  However, the parental rights of a known sperm donor will be tested in the Ontario courts in the summer of 2013.

If you require legal assistance in matters of known or ID disclosed sperm donor agreements, please contact us at (416) 428-5511 or

The Cost of IVF in Canada

The Cost of IVF in Canada

What Is In Vitro Fertilization?

In Vitro Fertilization (IVF) is a medical procedure where a woman’s eggs are removed from her ovaries and fertilized in a lab with sperm from her partner or selected donor. The embryos created from the fertilization are returned to her uterus, or the uterus of a surrogate mother, in hopes of creating a pregnancy. As a woman’s age increases, the live birth rate from IVF decreases.

A 35 year-old woman can expect a live birth rate of approximately 30% to 35%. If a woman’s partner or sperm donor suffers from infertility issues such as low sperm motility or movement, then intracytoplasmic sperm injection (ICSI) may be necessary. ICSI is a delicate procedure requiring the lab technician to inject a single sperm into the egg, and is performed at an additional cost.

How Much Does In Vitro Fertilization Cost?

The cost of IVF varies across Canada. The chart below outlines the per-treatment cost ranges for IVF alone and when sperm injection (ICSI) is required.

Geography Costs– IVF Cycle Cost IVF + ICSI Medication
Western Canada $4,000 – $8,000 $5,400 – $9,500 $2,000 – $7,000
Ontario $4,500 – $7,000 $6,000 – $8,150
Quebec $5,500 $7,000 – $8,000
Maritimes $5,400 – $5,925 $6,900 – $7,425

Additional costs may include fees for initial consultations and/or registration with the fertility clinic, other recommended services and procedures such as assisted embryo hatching, legal fees for egg, sperm or embryo donor contracts and surrogacy contracts, and other miscellaneous expenses such as travel costs and lodging.

Alternative Funding Sources

You may also be eligible for provincial and federal tax credits when claiming your non-reimbursed medical expenses on your Canadian income tax return. How much of a credit you will receive is dependent on your income.

Some fertility treatment clinics offer financing options to help pay for the cost of treatments. Your employer health benefits may also offer coverage on drug prescriptions and select procedures.

Debate #1 – How Many Embryos To Transfer?

Many intended parents opt to have multiple embryos transferred at one time in order of one at a time in order to increase the chance of pregnancy and decrease the cost associated with multiple IVF cycles. Due to the risks associated with multiple births, more clinics are now providing more thorough information sessions to prospective parents and some clinics are insisting on single embryo transfers. Depending on your circumstances and conditions, some of your treatment may be covered by provincial health care. For example, in Ontario, OHIP will pay for three cycles of IVF (but not the medications) for women under the age of 40 with bilateral blocked fallopian tubes that has not resulted from a sterilization procedure. In Quebec, three rounds of IVF treatment for couples are funded only if one embryo is transferred at a time. Check with your provincial health ministry to see if any costs are covered before you begin your treatments.

Debate #2 – Should Government Cover The Cost Of IVF?

UK regulators have recently proposed changes to IVF coverage that would include women up to the age of 42 (previous limit was up to the age of 39), same-sex couples and those suffering from terminal illness. These changes have sparked conversation around the world and recently re-ignited the debate in Canada regarding whether the government should also cover women up to the age of 42, same-sex couples and those suffering from terminal illnesses.

Pregnancies created from the transfer of multiple embryos are 17 times more likely to result in a pre-term birth, are more likely to require a caesarean birth, and the infants are more likely to need expensive care at birth and throughout their lives. Quebec instituted the one-embryo-at-a-time policy to help reduce the risks, thereby reducing the costs associated with multiple transfers. Supporters of broader IVF coverage advocate the cost savings and/or health benefits to the government, the intended parents as well as the surrogate mother. A study by Dr. Keith Barrington and colleagues from the University of Montreal has reported that Quebec has experienced a decrease in twins from 27% to 5% in the first 6 months of government funding.

What do you think? Should the government expand IVF coverage in Canada? Let us know your thoughts.

Must-Know Acronyms from the World of Fertility, Surrogacy and Donation

Must-Know Acronyms from the World of Fertility, Surrogacy and Donation

If you’re new to the world of fertility treatments, surrogate mothers or egg, sperm and embryo donation, the first steps on your journey will no-doubt be daunting. There are many players in the field including fertility doctors, infertility counsellors, intended parents, egg and sperm and embryo donors, surrogate mothers, surrogacy and fertility lawyers, clinics, legislation, support groups and forums.