FAQs on surrogacy in Canada: part 2
July 24, 2013
Find more answers to your surrogacy questions.
1. HOW LONG DOES THE PROCESS TAKE?
The entire process, including obtaining independent legal advice, can usually be completed in about two to three weeks.
2. HOW DO WE FILL OUT THE PAPERWORK IN THE HOSPITAL?
The lawyers at Dunphy Best Blocksom LLP will guide you with respect to this process, and the information to provide to hospital staff with respect to the surrogacy.
3. HOW DOES THE PARENTAGE DECLARATION WORK ONCE THE CHILD IS BORN?
The Parentage Application revolves around the definition of “mother” in various pieces of Alberta legislation including the Family Law Act and the Vital Statistics Act. The intersection of the legislation is somewhat complex and the information below is meant to be a very general overview.
Under current law in Alberta, it is possible to become a “mother” in three ways. The first is to give birth, regardless of genetic relation to the child. The legal presumption is that a woman who gives birth is the mother. The second way to become a mother is to adopt a child. The third way is to make an application under the Family Law Act in the case of a genetic, donor egg or donor sperm surrogacy.
The legal presumption that a woman who gives birth is the legal “mother” creates a gap in the case of surrogacies, where the baby’s carrier is not related to the child. Accordingly, a process has been developed called a Parentage Declaration, whereby a Court Application is brought within days of the baby’s birth, to have the genetic mother or intended parents “declared” the legal mother/parents. This Court Application must be brought with the consent of the surrogate (and her spouse, if she has one).
Once the Parentage Declaration is obtained, it is provided to Vital Statistics where a new Registration of Birth will be issued identifying the intended parents as the child’s only parents.
The old Registration of Birth (which has the surrogate identified as the mother) is destroyed. This process completely eliminates the need for an adoption in the case of genetic, donor egg and donor sperm surrogacies.
Normally, the intended parents will be in a receipt of the new Registration of Birth within about 3 weeks of the child’s birth. This will allow them to apply for a Birth Certificate, which shows the intended parents as the only parents of the child.
If the carrier is genetically related to the child, then various forms of adoption might need to be pursued.
4. DOES THE PROCESS APPLY TO NON-ALBERTA RESIDENTS?
The same process applies to intended parents who are not residents of Alberta. As long as the baby is born in Alberta, the Alberta Courts have jurisdiction.
5. WHAT ABOUT SAME-SEX COUPLES?
The same processes apply for same sex couples in surrogacy situations.
As a result of the complexity of the various options above, it is strongly recommended that families seek the assistance of legal counsel well in advance of the birth of the child.
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