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Lisa Feldstein Law Office can draft surrogacy agreements and apply for declarations of parentage on behalf of intended parents. Please see our Reproductive Law page for more information about our surrogacy law services.
The Assisted Human Reproduction Act (“AHRA”) does not prohibit surrogacy; thus, surrogacy in Canada is legal. What is not legal is paying a woman to act as a surrogate (often referred to as “commercial surrogacy”). This means that if a woman chooses to become a surrogate mother, it must be an altruistic act and not financially motivated. Commercial surrogacy is permitted in other parts of the world. Although a surrogate in Canada cannot be paid, she can be reimbursed for any out-of-pocket expenses.
There is no list that sets out who legally is and who is not allowed to be a surrogate; however, there is an age requirement.
Surrogates must be at least 21 years of age. It is against the law to counsel or induce a female person to become a surrogate mother; or perform any medical procedure to assist a female person to become a surrogate mother, if they know or have reason to believe the woman is not yet 21 years old.
It is noteworthy that the law does not expressly prohibit a woman who is 20 years of age or younger from acting as a surrogate. This is likely the case to avoid penalizing the young woman, who may have been coerced into acting as a surrogate.
There would also be significant issues if there were concerns about a surrogate’s mental capacity to enter into a surrogacy arrangement or to provide consent to the assisted reproductive technologies.
Beyond who is legally allowed, there are also characteristics that make some women better surrogates than others. For example, women who have experienced pregnancy, completed their families, and have a supportive partner.
There are two types of surrogacy: (1) traditional, and (2) gestational.
Traditional surrogates are women who are genetically related to the child they are carrying. They are impregnated and carry the child with the intention of having another person care for the child as a parent upon birth. Sometimes they are referred to as a surrogate and egg donor.
Gestational surrogates are those who carry the child in their wombs but are not genetically related to the child. This means that another woman's eggs are used for conception (from an egg donor or the intended mother). In such cases the embryo is created outside the body and transferred to the surrogate's uterus shortly after conception.
The term “surrogate mother” is used as an umbrella term and includes both traditional and gestational surrogates. The term “carrier” is often used by professionals in the fertility industry instead of “mother” to avoid suggesting that the woman carrying the child is a parent.
Women who are impregnated with donor sperm who are genetically related to the child and who intend to raise the child themselves are not considered surrogates – they are simply called the mother. In female same-sex relationships the partner who is not carrying the child is often called the “co-mother”.
There are two main legal elements to the surrogacy process in Ontario: (1) the agreement and advice, and (2) the declaration of
parentage**.
At the beginning of the surrogacy process the intended parents meet with a lawyer to discuss the details of the arrangement. The lawyer for the intended parent(s) will give legal advice and draft a surrogacy agreement. If there is a known egg or sperm donor, the lawyer for the intended parent(s) will also draft a donor agreement. The surrogate and donor(s), if applicable, then seek their own lawyers and obtain independent legal advice (“ILA”). The lawyers speak and, in consultation with their clients, finalize the agreement. It is very important that these steps happen before the embryo is transferred (or in-vitro fertilization occurs, in the case of donor sperm or egg).
The second legal element in the process is called a “declaration of parentage”. This is the part of the process that ensures the intended
parents are legally recognized as the parents of the child (as opposed to the surrogate). Although much of the paperwork is completed prior to the birth, the parties cannot sign until after the child is born. The lawyer will send out documents for signature and the originals are returned to the lawyer. Once the paperwork is assembled the lawyer will file the paperwork in court. At a later date the lawyer will appear before a judge and obtain a court order declaring the intended parents to be the legal parents of the child. The intended parents can then use the court order to obtain a birth certificate in Ontario.
**Please note that effective January 1, 2017, most intended parents will be able to avoid the declaration of parentage provided they take certain steps in advance. In most cases parents whose baby is born in Ontario via surrogacy will be able to register the baby’s birth shortly after the birth without a court order.
At Lisa Feldstein Law Office we also assist clients with communicating arrangements to the hospital to ensure the process goes smoothly, revising birth plans, assisting with birth registrations and other aspects of the process. We are “on call” around the time of the delivery to answer questions from clients and hospital staff.
For those who are more visual, below is an overview of the surrogacy contract process.
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