FAQs on surrogacy in Canada: part 1

Surrogacy in Canada is a legal option and a highly fulfilling alternative for couples that have difficulty creating a family on their own. It is also a wonderful opportunity for women to change the lives of those who cannot carry a child to term.

Whether you are looking to become a parent through surrogacy, or become a  surrogate, you will have many questions and be faced with overwhelming decisions.

Learn more about the types of surrogacies in Canada, surrogacy contracts in Alberta and the legal proceeding called a Parentage Declaration, which takes place upon the birth of the child.

1. TYPES OF SURROGACIES

There are different types of surrogacies.

• Genetic Surrogacy: when the genetic mother’s ovum or ova and the genetic father’s sperm are fertilized and implanted into the womb of a third party, the surrogate. Thus, the baby in a genetic surrogacy is not related to the woman who carries him or her.
• Donor Egg Surrogacy: where the intended father is genetically related to the child, but the carrier and the intended mother are not.
• Donor Sperm Surrogacy: where the carrier is not genetically related to the child but carries the intended mother’s ova, which have been fertilized by a donor (not the intended father).
• Traditional Surrogacy: where the carrier is genetically related to the child that she bears for the intended parents.

2. IS SURROGACY LEGAL?

In Canada, it is legal to enter into a surrogacy agreement. The Alberta Courts routinely grant Parentage Applications in the case of genetic, donor egg and donor sperm surrogacies. This means that the intended parents, not the surrogate or her spouse, will be named on the child’s birth certificate.

3. CAN A SURROGATE BE PAID?

It is illegal in Canada for a surrogate to derive income for her services. However, the surrogate’s expenses and a reasonable amount for lost income (if applicable) can be reimbursed. The test is that a surrogate must not profit from the arrangement. Canada’s Assisted Human Reproduction Act also requires that surrogates be at least 21 years old.

4. WHAT DOES THE SURROGACY CONTRACT TYPICALLY COVER?

• psychiatric or psychological pre-screening
• behaviour during pregnancy
• issues governing expenses, insurance and reimbursements
• issues surrounding genetic testing of the fetus
• arrangements concerning custody of the child in the event that something happens to the intended parents (including injury, separation or divorce)
• the need for wills
• resolution of conflicts that may arise during or after the pregnancy

5. CAN ALL OF THE PARTIES TO THE CONTRACT SAVE EXPENSES BY USING THE SAME LAWYER?

To minimize expenses, the Surrogacy Contract can be drafted with the input of all of the parties. However, before the Surrogacy Contract is signed, the surrogate and her husband and/or partner are asked to seek independent legal advice to ensure that they fully understand all aspects of the arrangement. Dunphy Best Blocksom LLP can provide the parties with a list of lawyers who can provide independent legal advice. Typically, the surrogate’s legal expenses are paid by the genetic and/or intended parents.