Fertility Law Surrogacy

What is surrogacy?

Surrogacy is an arrangement in which a woman, typically referred to as the “surrogate mother” or “gestational carrier”, agrees to carry a baby to term for another person or couple who will become the child’s parent(s) after the birth (the “intended parent(s)”). The terms of the arrangement between the surrogate and the intended parent(s) are set out in a legal agreement called a Surrogacy Agreement.

Why do people choose surrogacy?

There are many reasons why people turn to surrogacy build their family, some of which include:

• Primary infertility: inability to become pregnant or carry a baby to term
• Secondary infertility: inability to conceive or carry a baby to a live birth following either a previous pregnancy or after giving birth to a baby
• Higher risk of pregnancy-related complications
• A history of problems during pregnancy
• Past trauma during pregnancy or childbirth (labour and delivery)
• Personal choice
• For same-sex couples and single men, surrogacy is a great option as it provides the opportunity to have a child with a genetic connection to one parent.

What is the difference between traditional and gestational surrogacy?

Traditional surrogacy is an arrangement where the surrogate is biologically related to the child she is carrying for the intended parent(s). The traditional surrogate donates her own egg, which is fertilized with sperm from the intended father or a donor via artificial insemination. While, the traditional surrogate is the biological mother of the child, she is carrying with the intention of giving the child to the intended parent(s) after birth. While traditional surrogacy is easier and cheaper than gestational surrogacy, it carries significantly greater legal risks and is not very common in Canada. Few fertility clinics will agree to inseminate traditional surrogates, and many fertility lawyers are unwilling to draft a surrogacy agreement for a traditional surrogacy arrangement.

Gestational surrogacy is the preferred and most common surrogacy arrangement in Canada, primarily because the surrogate does not have a genetic connection to the child she delivers. A gestational surrogate, often referred to as a “gestational carrier”, is not biologically related to the child she is carrying. Either the intended mother’s egg or a donor’s egg is fertilized with the intended father’s sperm or donor sperm in a laboratory setting via in vitro fertilization (IVF). The embryo is thereafter transferred to the surrogate’s uterus.

Is surrogacy legal in Canada?

Both traditional and gestational surrogacy are legal in Canada. While surrogacy is legal, the Assisted Human Reproduction Act (“AHRA”) makes it illegal to pay a surrogate for her services.

Can surrogates receive any financial compensation?

The Assisted Human Reproduction Act prohibits the payment of any consideration to a woman acting as a surrogate, including offering to pay consideration or advertising that it will be paid. While it is illegal to pay a surrogate for her services, it is legal to reimburse a surrogate for specific expenses that are set out in the Reimbursement Related to Assisted Human Reproduction Regulations (SOR/2019-193). These regulations came into force on June 9, 2020. 

Who can be a surrogate?

In Canada, surrogates must be at least 21 years of age, according to the Assisted Human Reproduction Act. Although it is not a requirement under our legislation, clinics and intended parents typically select a surrogate who has completed her own family or at least carried a baby to term.

Why do I need a surrogacy agreement?

In British Columbia, there must be a surrogacy agreement in place before a child is conceived to ensure the intended parents become the legal parents of the child. This written legal agreement is called a surrogacy agreement. If the surrogacy agreement is made after conception, the arrangement will not be considered surrogacy, and an adoption must occur after the birth.

What is included in a surrogacy agreement?

The surrogacy agreement sets out the legal obligations and rights of the intended parents and the surrogate, who are the parties to the agreement. It is a lengthy and detailed agreement that is heavily customized to account for the unique circumstances of the parties. The document contemplates numerous situations that can arise during the surrogacy arrangement.

Why does a surrogate need independent legal advice?

A surrogate cannot be represented by the same lawyer as the intended parents as this is a conflict of interest for the lawyer.

Specifically, situations can arise where the interests of the surrogate and the intended parents differ or are opposed. Therefore, a surrogate must obtain independent legal advice (ILA) from her own lawyer who can advocate for and protect her interests. 

What is the legal process for surrogacy in British Columbia?

The process is typically as follows:

1. The intended parents retain a fertility lawyer to provide legal advice and draft a surrogacy agreement. 
2. Once the surrogacy agreement is drafted, the surrogate meets with her lawyer to obtain independent legal advice (ILA) regarding the agreement. 
3. The surrogate’s lawyer may suggest revisions to the agreement, and the lawyers (on behalf of their clients) will negotiate and revise the terms until the agreement meets the approval of all parties.
4. The intended parents’ lawyer may also draft a donor agreement in cases where a donor provides sperm, ova, or embryos.  In this case, the donor(s) will also need to obtain independent legal advice.
5. The surrogacy agreement and donor agreement (if applicable) are signed before the child is conceived.
6. After the child’s birth, the intended parents become the legal parents of the child provided that:

• no party withdraws from the agreement before the child is conceived;
• after the birth, the surrogate gives written consent to surrender the child to the intended parent(s); and
• the intended parent(s) take the child into their care.

What is a declaration of parentage?

In cases where there is a dispute or uncertainty as to parentage under British Columbia’s Family Law Act, a court application can be made for a declaration of parentage (an “order declaring parentage”), in order to be legally recognized as the parent(s) of the child.