Frequently Asked Questions
What is surrogacy?
Surrogacy is an arrangement in which a woman agrees to become pregnant for the purpose of gestating and giving birth to a child who will be raised by another person or couple. The surrogate may be the child’s genetic mother or not, depending on the type of surrogacy arrangement entered into.
What are the possible surrogacy arrangements?
- Gestational Surrogacy: The intended mother’s egg is fertilized by the intended father’s sperm, by in vitro fertilization (IVF), creating an embryo which is transferred to and gestated by the surrogate mother. With this method, the child is genetically related to both parents, and not to the surrogate mother.
- Gestational Surrogacy & Egg Donation: Where there is no intended mother, or the intended mother is unable to contribute eggs, the intended father’s sperm is used to fertilize a donor egg, creating an embryo which is transferred to and gestated by the surrogate mother. With this method, the child is genetically related to the intended father, and the surrogate mother has no genetic relation.
- Gestational Surrogacy & Donation Sperm: If there is no intended father, or the intended father is unable to contribute sperm, the surrogate mother carries an embryo created from the intended mother’s egg and donor sperm. With this method, the child born is genetically related to the intended mother, but not the surrogate mother.
- Gestational Surrogacy & Donation Embryo: When neither intended parent is able to contribute their gametes (egg and sperm), the surrogate mother can carry a donated embryo. With this approach, the child born has no genetic relationship to either the intended parents or the surrogate mother.
- Traditional Surrogacy: This involves artificially inseminating a surrogate mother with the intended father’s sperm. With this approach, the child born is genetically related to the intended father and the surrogate mother.
- Traditional Surrogacy & Donor Sperm: This involves artificially inseminating a surrogate mother with donor sperm. With this approach, the child born is not genetically related to the intended mother and/or the intended father.
Is surrogacy legal in Canada?
Yes, surrogacy is legal in Canada and is governed by a piece of federal legislation called the Assisted Human Reproduction Act, which was proclaimed, in part, in April 2004.
Do surrogate mothers get paid?
Acting as a surrogate mother can place a significant financial burden on a woman and her own family. Pursuant to section 6 of the Assisted Human Reproduction Act, surrogate mothers in Canada can only be reimbursed for only their out-of-pocket expenses related to the surrogacy.
What are considered “out-of-pocket” expenses?
Currently, there are no regulations under the Assisted Human Reproduction Act which dictate what may or may not be considered an out-of-pocket expense. Therefore, such expenses may include maternity clothing, healthy food, prenatal vitamins, childcare, household assistance, travel costs, lost wages while on doctor-prescribed bed rest, medications, medical bills, etc.
What is the preferred age range for surrogates?
Surrogate mothers should be between the ages of 21-45 years old.
How do intended parents and surrogates find each other?
When looking for someone to carry a child on their behalf, intended parents typically start by canvassing their family and circle of close friends for someone who would be willing to take on the responsibility. Short of that, there are many possible avenues for intended parents and surrogates, who are previously unknown to one another, to become connected, wheather it is online or through a fertility consultant, fertility clinic or doctor’s office. In any case, however, it is vital to proceed with extreme caution. Be sure to meet in person more than once, obtain a copy of a counsellor’s report, listen to your instincts, and use your best judgement.
Is a surrogacy agreement necessary?
Yes, it is necessary to enter into an agreement, which sets out the rights and responsibilities of all parties, in advance of the embryo transfer. Surrogacy agreements deal with very important issues including confidentiality, custody and parental rights, prenatal obligations on the part of the surrogate, reimbursement of expenses.
Can I draft my own surrogacy agreement, or use one I found online?
No, I absolutely do not advise drafting your own agreement or using an old one found elsewhere. That approach is far too risky given the important issues involved. This area of law is ever-changing and each agreement needs to be tailored to your own particular facts and circumstances. It is very important to work with a lawyer who specializes in the area of fertility law (surrogacy law and third party reproduction law) and who can provide legal advice based on experience and up-to-date knowledge.
Who should have a lawyer when entering into a surrogacy agreement?
It is essential that the intended parents and the surrogate be represented by their own lawyers when entering into a surrogacy agreement. There are two main reasons for this: (1) it is a conflict of interest for one lawyer to represent both the intended parents and the surrogate as the parties have divergent interests; and (2) the parties must fully understand all aspects of the agreement they are entering into, including their rights and/or interests being released and/or waived by the agreement.
If we use a surrogate, how does the baby become “ours” after the birth?
The process of becoming a child’s legal parent(s) following surrogacy varies according to provincial legislation. For births that take place in Ontario, intended parents have two options: (1) they may take the legal steps required to register the birth in their name(s), if they meet certain legislated criteria; or (2) they may apply to the court for a declaration of parentage and permission to register the birth in their name(s), if they do not meet the legislated criteria or if they wish to obtain a court order.
Is gamete (egg and sperm) donation legal in Canada?
Yes, gamete donation is legal in Canada and is governed by section 7 of the Assisted Human Reproduction Act, which provides that donors cannot be compensated for their gametes. They may, however, be reimbursed for their out-of-pocket expenses related to the donation.
Do I need an egg, sperm, or embryo donation agreement?
When contracting with a known gamete donor or gamete recipient, it is typical for the parties to enter into a donor agreement in order to set out the rights of the recipient, and sever any rights or obligations to the child that the donor may have now or may acquire in the future.
Does the gamete (egg, sperm, and embryo) donor also need a lawyer?
It is essential that the recipient and donor be represented by their own lawyers. There are two main reasons for this: (1) it is a conflict of interest for one lawyer to represent both the recipient and the donor as the parties have divergent interests; (2) the parties must fully understand all aspects of the agreement they are entering into, including their rights and/or interests being released and/or waived by the agreement.