Canadians are increasingly turning to assisted reproduction, such as surrogacy, to assist in achieving pregnancy.
Whether you’re considering becoming a parent through surrogacy or acting as a surrogate, understanding when and how to formalize your surrogacy agreement is key to protecting everyone’s rights.
What is a Surrogacy Agreement?
A surrogacy agreement is a written agreement between a surrogate and one or more intended parent(s). Prior to conception, the parties involved should ensure they have a surrogacy agreement in place and have received independent legal advice before signing.
A surrogacy agreement will address all aspects of the process, including the period before conception, during pregnancy, and post-birth. This will include relevant details such as:
- The parties’ intentions regarding the child custody arrangements and each party’s role;
- Specifics regarding psychological and medical assessments and counselling;
- Details surrounding conception, embryo transfer, and the gametes to be used;
- Prenatal obligations;
- Parental rights and responsibilities;
- Insurance coverage obligations;
- Expenses and reimbursement; and
- Contact post-birth.
A surrogacy agreement will also ensure that parties are aware of their rights and obligations under the legislation that governs surrogacy in Canada, the Assisted Human Reproduction Act (AHRA).
It is important to note that while an agreement can set out the parties’ intentions on a vast range of potential issues, not all are strictly enforceable. For example, it remains the surrogate’s decision whether to terminate a pregnancy or where to give birth. However, addressing these issues early on helps prevent potential conflict or misunderstanding in the future.
Why Have a Surrogacy Agreement?
Entering into a surrogacy agreement prior to conception allows the parties to turn their minds to the difficult questions that may arise during a pregnancy. These include such issues as genetic testing, dealing with leftover embryos, and the possibility of terminating a pregnancy.
A surrogacy agreement also demonstrates the pre-conception intention of all parties involved. This can be particularly relevant in the case of disputes, as courts often consider such intentions when resolving legal conflicts that arise. Moreover, some fertility clinics require the parties to enter into a surrogacy agreement before proceeding with procedures like insemination, egg retrieval, or embryo transfer.
Conclusion
Intended parents and surrogates can avoid uncertainty and future legal issues by having a valid surrogacy agreement that clearly outlines expectations and provides all parties the opportunity to understand their legal rights.
At Nelligan Law, our Family Law team understands the complexities of surrogacy agreements and the legal landscape surrounding assisted reproduction in Canada. We are dedicated to guiding you through the process and ensuring you receive the legal advice you need.
Assisted by Victoria M. Brown, a 2nd year University of Ottawa Common Law Student, with Pro Bono Student’s Canada
