Surrogacy & Surrogacy Agreements – A Refresher
Surrogacy
Surrogacy is when a woman carries a child for another (intended parent or intended parents) intending that the surrogate will give the child to the intended parent(s) on birth. Surrogates must be at least 21 years old.
Surrogacy is not adoption. Surrogates, even before they are pregnant, do not see the child they carry as their own.
Surrogacy in Canada is supposed to be altruistic (i.e. the Assisted Human Reproduction Act prohibits paying a woman for the surrogacy). The AHRA also forbids offering to pay a surrogate or advertising to pay a surrogate. Contravening this section of the legislation can result in up to 10 years imprisonment and/or a fine of $500,000.
A surrogate can be reimbursed for their out-of-pocket expenses. For instance, maternity clothes are a reimbursable expense in accordance with the relevant regulations.
Surrogacy Agreements
Surrogacy agreements should be put in place before conception. There are many reasons for a surrogacy agreement. For instance, such an Agreement demonstrates the parties' pre-conception intention. This is important because biology does not tell the story in these cases in terms of who is gestating and delivering the child. Also, genetics may well not tell the story.
Surrogacy agreements will also ensure as best as possible that there is a mutual understanding of each party's rights and obligations. For example, the donors will waive parental rights and the intended parent(s) accept the parental rights in a surrogacy agreement.
These agreements can also assist parties in turning their minds to "difficult questions". To name a few:
- Invasive testing
- Will the surrogate be willing to terminate the pregnancy if requested by the intended parent(s) because of serious fetal abnormality?
- Confidentiality
Once the surrogate is pregnant, the lawyer for intended parent(s) will also prepare a medical letter. This letter will put the relevant hospital/birth center/midwife on notice of the surrogacy birth.
Legal Parentage
Your fertility lawyer should also discuss legal parentage with you early on in the process. Legal parentage is provincial. In other words, every province in Canada has its own set of laws dealing with legal parentage of children born through third-party reproduction.
If you are thinking of entering into a surrogacy, we can support you through legal representation. If you are an intended parent or a surrogate, contact Ashley Krol at (289) 809-5220.
