As family dynamics change, many couples, including same-sex couples or couples who may have trouble conceiving or carrying a child have been turning to surrogacy. Surrogacy is becoming more and more mainstream, with celebrities such as Kim Kardashian and others choosing surrogacy as an option. With surrogacy so frequently in the news and becoming a topic of discussion, we explore why couples choose surrogacy and how surrogacy works in Canada.

Why Choose Surrogacy?

Every couple has their own personal reasons for why they choose surrogacy. For some couples, there is a fertility issue, a woman is not able to carry a foetus to full-term or there may be some other health risks that come with pregnancy which are too dangerous for a woman to take on. Surrogacy is also a path for same-sex couples to have a biological child. Regardless of why people choose surrogacy, it is important to know what you are getting into, what your rights are as a surrogate and as the parents of a child born through a surrogate, what is expected of the parties involved, and any legal ramifications there may be.

Surrogacy in Canada

Surrogacy is permitted in Canada, but the law prohibits “commercial surrogacy” (i.e. any surrogacy where the surrogate is compensated).

In 2004, Parliament passed the Assisted Human Reproduction Act, which regulates all assisted human reproduction and related research including in-vitro fertilization, intrauterine insemination, and surrogacy.

The Act defines certain prohibited activities based on Parliament’s determination that these activities are ethically unacceptable, incompatible with Canadian values, or put the health, safety, and values of Canadians at risk.

Examples of these prohibited activities include:

  • Creating an in vitro embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures;
  • Human cloning;
  • Pre-selecting or increasing the probability that an embryo will be a particular sex (except to prevent a sex-linked genetic condition).
  • Creating a hybrid for the purpose of reproduction, or transplanting a hybrid into a human being or non-human life form; and, importantly for surrogacy purposes,
  • Paying, offering to pay, or advertising payment for sperm, eggs or in vitro embryos from donors or for the services of surrogate mothers (including payment to a third party for arranging for the services of a surrogate mother).

Altruistic Surrogacy

 All surrogacy in Canada is “altruistic surrogacy”- an arrangement in which the surrogate receives no compensation beyond basic medical costs and reasonable pregnancy-related expenses).

Every surrogate will have different out-of-pocket expenses as their circumstances, employment, and health will be unique.  Some examples of such expenses include:

  • Legal fees – both parties should obtain independent legal advice, and obtain surrogacy contract to govern expectations and the surrogacy relationship;
  • Surrogate expenses – additional meals, childcare, health supplements (including vitamins), or treatment (such as acupuncture or reflexology); and
  • Fertility treatment and medication – surrogates need to prepare their body to maximize the chances of success of the implantation, so they will go to a fertility clinic and start hormone injections to sync their body with that of the egg donor. The embryo will ultimately be implanted at the same fertility clinic;

Some other expenses would depend on how the pregnancy progresses. If a surrogate is required to be on bed rest but she has a job, there will be expenses to be made up for the loss of income. If the surrogate is a stay at home mom, her expenses will, again, be different.

Why do you need a lawyer for surrogacy?

Ultimately, every couple will want something different out of their surrogacy. Some couples do not to remain in contact with their surrogate once the surrogacy is over, while others want their surrogates to be a part of their and the child’s lives forever. Surrogates themselves may also have certain expectations arising from the surrogacy and the relationship they build (or don’t build) with the future parents over the course of the fertility treatment and subsequent pregnancy.

In order to manage everyone’s expectations, ensure they are on the same page with respect to what the surrogacy will entail,  and mitigate the potential risk of future disputes between the parents and the surrogate, it is essential for all parties to each independently consult with a lawyer and obtain legal guidance, and ultimately come to an agreement that is then made official through a surrogacy contract (often called a surrogacy agreement).

As surrogacy has grown in popularity, there have been some cautionary stories that are instructive to individuals looking to use a surrogate.

For example, in one case in 2011, a surrogate mother was left with twin babies when the intended parents told her they had split up and they were no longer coming to Canada from England to pick the babies up and take them home. The surrogate mother, who already had two young children of her own, ended up finding an adoptive home for the children, but this story served as a cautionary tale, according to some legal experts.  The surrogate mother had done what the experts advised: met with the couple, got to know them, and signed a surrogacy contract. However, she did not follow standard procedure, which involves using the sperm and egg of the intended couple. Instead, they used her egg and the father’s sperm, which meant the children were biologically hers, something very few fertility clinics will do.

This case provides an example of why consultation with a lawyer can really help a surrogate and intended parents. A lawyer will go through the law, explain what is and isn’t permitted, what the expectations should be, and how to avoid any problems. Due to a ruling in 2010 by the Supreme Court of Canada, provinces have the exclusive authority to regulate fertility clinics, license doctors, reimburse sperm and egg donors for their expenses and decide how many embryos to implant. This means that parents and surrogates depend heavily on lawyers to ensure they stay within the parameters of the fertility laws.

Surrogacy is not always the right option for everyone. If you are considering becoming a surrogate or using a surrogate, consulting a lawyer who is experienced will help prepare you for the uncertainties that come with the process. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients figure out the right path for you and your family. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you, call us at 905.576.6090 or contact us below. Ask us about flat fees.