Surrogacy Agreements: Important Considerations

Surrogacy Agreements: Important Considerations

Topic: Family Law May 18, 2017 by Erika Young

Canadians are increasingly turning to assisted reproductive technology, such as surrogacy, to expand their families. This is because of the increasing availability of the technology, a rise in infertility, and the change in the make-up of families, including having children later in life and an increase in same-sex couples.

If you and your partner are considering using a surrogate, or you have been asked to be a surrogate, it is important that you be aware of the significant legal implications and considerations of this unique arrangement.

For example, did you know that under Canadian law, you are prohibited from paying a surrogate? There are some expenses for which the surrogate can be reimbursed, however, the law is not yet settled as to what can and cannot be reimbursed.

An important consideration in making your decision whom to use for a surrogate may be by where the surrogate lives, as this will determine how you, your partner and the surrogate are legally recognized as parents. Who is recognized as a parent is provincially regulated, and therefore varies from province to province. It is important to be aware of those differences.

For example, in Prince Edward Island, a woman who gives birth to a child is automatically deemed to be the child’s mother; this includes a surrogate. In Alberta, a Court Order is required to recognize parental rights over any rights the surrogate may have to the child. In other provinces, such as Manitoba, New Brunswick, Newfoundland and Saskatchewan, there is no legislation addressing parental rights, leaving this area of the law rather grey.

In Ontario, a surrogate is not a parent provided all four of the following requirements are fulfilled:

  • There is a written surrogacy agreement pre-conception;
  • The parties each had independent legal advice;
  • There are no more than four intended parents; and
  • The surrogate consents to relinquishment 7 days post-birth.

Absent an agreement, the surrogate may have parental rights under Ontario law with respect to the child.

It is important to have a discussion with the surrogate before entering into a surrogacy agreement in order to define the intention and parameters of the surrogacy arrangement, clarify the parental rights with respect to the child and outline the expectations and relationship among all of the parties.

Timing is important when it comes to surrogacy agreements. It is crucial that the agreement is entered into before conception even occurs. Under Ontario law, each party must also have independent legal advice prior to entering into the agreement, meaning each party to the agreement must consult with a lawyer prior to entering into the agreement.

If you are considering using a surrogate, or you have been asked to be a surrogate, please feel free contact Erika Young of the LMR Family Law Practice Group and she will be pleased to answer any questions you might have about this very complex and important subject.

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