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As reproductive science continues to advance, fertility law is fighting to keep up. With Ontario’s announcement that, under its new Fertility Program, eligible Ontarians will receive government funding for fertility treatment, it is anticipated that fertility law will only become increasingly relevant. In the absence of clear and detailed legislation, however, it can be difficult to know one’s rights and obligations. While pulling from existing legislation and legal principles can help to deal with legal issues affecting both the intended parent(s) and the surrogate, there remains a plethora of issues that should be carefully considered before deciding to use or become a surrogate. Below are a few things you should consider.

1. Who will be the genetic mother and father?

For same-sex couples, before embarking on the IVF process, you will need to consider which party, if any, will be the child’s biological parent. You should have a clear understanding of how the non-biological parent will assume parental rights and responsibilities. This is usually done through adopting the child shortly after birth, though in some circumstances it may be possible for both intended parents to be immediately listed on the child’s birth certificate.

If using a sperm or egg donor, is the donor known to the intended parents? Whether or not the donor is known can have different consequences upon the birth of the child. Furthermore, if the donor is acting specifically for the intended parents (i.e. is not a sperm bank donor who previously donated sperm without intended parents), it is important to have a donor agreement in place to cover the parties’ expectations, rights and entitlements with respect to the donation process, before the sperm or eggs are donated.

If agreeing to act as a surrogate, do you know the identity of the genetic mother and father? Moreover, do you have confirmation that the gametes used to create the embryo have been fully tested to confirm that they are free of any transmittable diseases and are safe for transfer? Health and safety considerations should be paramount for all parties involved.

2. Where will the surrogacy take place?

If you live in Ottawa, but the surrogate lives in Gatineau, for example, it will be very important to clarify up front where the medical care and birth will take place, as the laws in Ontario and Quebec in relation to surrogacy are very different. In particular, you will want to fully assess any legal issues that may arise in both jurisdictions any time the intended parents and surrogate reside in different parts of the country; for a proper analysis, you should be seeking legal advice in both provinces.

3. In Canada, a surrogate cannot be paid

Pursuant to the Assisted Human Reproduction Act (“AHRA”), it is illegal to pay a woman to act as a surrogate; however, it is permissible to reimburse a surrogate for fees actually incurred as a result of the surrogacy. Intended parents should do the following: set out clearly which expenses will be covered; reimburse expenses upon provision of receipts or pay for expenses directly to the service/product provider; and be diligent in ensuring the expenses are directly related to the surrogacy. For example, it could breach the AHRA to cover a surrogate’s groceries when she would have had to pay for food regardless of whether she was acting as a surrogate; pre-natal vitamin coverage, on the other hand, would likely be okay. If someone is found to have paid a surrogate, the consequences are serious: a fine of up to $500,000 and up to 10 years in prison.

4. Consider various outcomes

If the surrogate gives birth to a baby (or babies) who are not genetically hers, the intended parents will be required to assume parental responsibility for the child. In addition, they may have asked the surrogate to terminate or selectively reduce the pregnancy for health reasons. It is also possible that the surrogate will refuse to give up the child (or children) following the birth, and the intended parents may have to commence legal action. While we cannot guard against all contingencies, this leads to the last point…

5. Have a Surrogacy Agreement in place

Given the sheer novelty of this area of law, there is little case law interpreting and applying surrogacy agreements, and we have little guidance on how courts will rule on issues arising out of any agreement. That said, a well-drafted surrogacy agreement can set out the parties’ expectations and intentions and ensure that, going into the surrogacy arrangement, the parties have canvassed key issues and agreed to follow certain courses of conduct. With proper legal advice given to all parties involved before embarking on a surrogacy arrangement, intended parents and surrogates will be in the best position possible to ensure that all of their specific needs have been properly considered and included into the terms of the agreement. This will mean that in the event of a dispute, the court will be in a good position to assess and decide on how the dispute should be resolved.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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