Fertility

Supporting individuals and families

When you are trying to start a family through means other than conventional conception, the last thing you want to worry about are legal issues. 

Fertility law is a new and quickly growing practice area. Why? Because when you pursue a non-conventional path to create a family, emotions can and do run high. It’s extremely difficult to remain objective. The lines that define the rights and obligations of each person involved are all too easy to blur and become a source of conflict.

Our team is uniquely suited to help clients navigate these difficult situations. Our lawyers have represented surrogates, egg donors, sperm donors, embryo donors and intended parents in negotiating and drafting agreements to reflect their intentions.

We are also experienced in the laws related to parentage upon birth when assisted reproduction techniques are being used and can advise and assist parents who need declarations of parentage and/or adoption orders to confirm their parenting rights. We have successfully worked with clients who needed parental recognition in unique circumstances where the parents were neither spouses nor were they genetically linked to their child. 

Read more about our services and how a fertility lawyer on our team can assist you:

Surrogacy agreements

Canadians are increasingly turning to reproductive technologies like artificial insemination; in-vitro fertilization (IVO); sperm, egg and embryo freezing or donation; as well as surrogacy to assist in achieving pregnancy. Rapid advances in these technologies however, have created gaps in the relevant provincial laws regulating them. Complex legal issues can arise, such as the anonymity and rights of gamete donors, the disposition of unused stored gametes or embryos in the event of a separation or death, as well as custody and disputes between different types of parents. As a result, these gaps are often filled through contractual arrangements between parties as well as through declarations of parentage. These contracts are not formally recognized within family or child custody law, and there is inconsistency over how a parent and child relationship or a family is defined. Courts generally address these issues on a case by case basis taking into account the terms of the contract and the best interests of the child.

It is important to know that Canadian law makes it illegal to purchase sperm or eggs from a donor, as well as the use of gametes provided by a donor under the age of 18. The law also prohibits the purchase and sale of embryos or any other reproductive material. Failure to abide by these provisions could result in a maximum fine of $500,000, a maximum prison sentence of ten years, or both.

Surrogacy is an arrangement where a woman agrees to become pregnant for the purpose of giving birth to a child for others to raise, where they choose or are unable to have children on their own. This might occur where an individual or couple experiences infertility, or in a same-sex relationship. There are several different types of surrogacy, and surrogacy agreements are complex, raising a considerable number of legal issues. To start with, it is important to know that while it is legal to enter into a Surrogacy agreement in Ontario, it is illegal to provide payment, offer payment or advertise payment for the services of a surrogate. Canadian law also requires that a surrogate must be at least 21 years old. A violation could result in a maximum fine of $500,000, a maximum prison sentence of ten years, or both.

Although you cannot pay a surrogate for her services, potential parents can reimburse the surrogate for expenses incurred as a result of the surrogacy. This may include the cost of maternity clothing, travel expenses, or out of pocket medical expenses. It is important to clarifying what expenses will and will not be reimbursed through the terms of your surrogacy agreement. Your surrogacy agreement should also clearly outline each party’s expectations before, during and after the birth of the baby. These include things like custody and access arrangements, who will name the child, instructions for the surrogate to follow during pregnancy, and who will make medical decisions during labour and immediately upon the child’s birth.

Egg donation

Advances in reproductive technology have enabled countless women to conceive. Many woman have given birth using a donated egg (also known as an ova). This is an incredible gift from one woman to another.

While egg donation is legal in Canada, it is not without its legal complications.

Both parties should plan to have enter into a egg donor agreement. This is regardless of whether the donor is known or anonymous. In fact, some fertility clinics require such an agreement before they commence treatment (mainly for known donors).

In essence, the egg donor agreement will also clarify the relationship between the parties. It will set out who the intended parents are of the child when it is born. It will also make clear that the egg is a gift from the donor, done for altruistic reasons, and will release the donor from any responsibilities related to the child. In addition, these agreements often detail the communication expectations between the donor and the recipient, as well as relevant health information.

The in regards to egg donation is still evolving, so if you are thinking about egg donation, contact our Family Law Group. We can assist you in preparing a egg donation agreement that will respect your wishes and intentions.

Sperm donation

Canada’s Assisted Human Reproduction Act permits altruistic sperm donation, which means entering into an agreement to purchase sperm is strictly prohibited.

Sperm donation agreements are an important tool for clarifying the parties’ intentions, particularly in terms of parental rights and responsibilities for a future child. A sperm donation agreement sets out who intends to be a parent and who does not.

In Ontario, section 5 of the Children’s Law Reform Act states that a person who provides reproductive material for use in the conception of a child through assisted reproduction is not recognized in law as a parent of the child unless that person is considered a parent through other rules of parentage in the legislation. This means donation of reproductive material, on its own, is not enough to automatically conclude that the donor is not a parent of the child.

Section 7(1) of the Children’s Law Reform Act, a person whose sperm results in the conception of a child conceived through sexual intercourse is recognized in law as a parent of the child.  However, section 7(1) will not apply if, before the child is conceived, the person whose sperm is used and the intended birth parent agree in writing that the person does not intend to be a parent of the child.

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