Surrogacy

Surrogacy is when a person (the surrogate) carries and delivers a baby on behalf of another (the intended parent(s)). Surrogacy is legal in Canada.

There are two types of surrogacy: gestational surrogacy and traditional surrogacy.

Gestational surrogacy is where the embryo is created using the gametes of the intended parents and may include donor eggs/sperm. The child is not genetically related to the surrogate. Most surrogacies fall into this category.

In traditional surrogacy, the child is genetically related to the surrogate (i.e. the surrogate’s eggs were used to create the embryo). Even though traditional surrogacy is legal, it is rare in Canada.

The surrogacy must be financially neutral for the surrogate. This means that a surrogate cannot be paid, but she can be reimbursed for particular expenses incurred because of the surrogacy, so long as certain requirements are met.  Reimbursable expenses and the process around reimbursement is governed by the Assisted Human Reproduction Act and its Regulations.

It is essential for the surrogate and the intended parent(s) to seek legal advice regarding the surrogacy agreement before any IVF or insemination begins. The surrogate and the intended parent(s) will each need their own lawyers to represent their distinct interests. Very important topics are covered in the surrogacy agreement. For example, there is a section dealing with prenatal obligations, consumption of toxic substances, some restrictions regarding the surrogate’s travel, etc. Once the surrogacy agreement has been negotiated and signed, a lawyer will send a clearance letter to the fertility clinic advising that the agreement has been signed and only then would a fertility clinic ordinarily proceed.

If you are thinking of entering into a surrogacy, at Krol & Krol we can support your journey through legal representation. If you are an intended parent or a surrogate and you have questions about surrogacy or surrogacy agreements, contact Ashley Krol at 905.707.3370, or (289) 809-5220.