Reproductive Technologies and Surrogacy
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.
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