Egg donation in Canada

Navigating the path to parenthood can be complex, especially when considering alternative methods like egg donation. Many individuals and couples find themselves with questions about the process, its legality, and the necessary precautions to ensure a smooth journey. 

What is egg donation?

Egg donation is when a woman, referred to as the “egg donor”, donates her ova to another person or couple, called the “recipient” or “recipients”, for their sole reproductive use.

Who uses egg donation?

Single individuals and couples may consider egg donation where the woman has poor quality eggs or no eggs due to advanced maternal age, medical reasons such as being born without ovaries, or other factors. A woman may also choose to use an egg donor if she has a genetic disease that she does not want to pass on to her children. Same-sex male couples may consider egg donation in addition to surrogacy.

How do you obtain donor eggs?

Donor eggs are typically obtained from a known donor, such as a friend or acquaintance, or an anonymous donor through an egg bank.

How does egg donation work?

1. Ovarian Stimulation: the donor is given medication to stimulate her ovaries, which enables her to produce multiple eggs during a single menstrual cycle.
2. Ovulation: Once the eggs have sufficiently developed (as shown by ultrasound), the fertility clinic will induce ovulation through injection of the naturally occurring hormone, Human chorionic gonadotropin (hCG).
3. Egg Retrieval: the eggs are retrieved from the donor during a short procedure at a fertility clinic.

Is egg donation legal in Canada?

While egg donation is legal in Canada, it is illegal to purchase eggs from a donor or a person acting on behalf of a donor.

Can egg donors be paid?

In Canada, egg donation is done on an altruistic basis. The Assisted Human Reproduction Act prohibits paying for, offering to pay for, or even advertising to purchase ova from a donor or a person acting on behalf of a donor. It is, however, legal to reimburse egg donors 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. 

Egg donation agreements

An egg donation agreement, also referred to as an ova donation agreement, is a written legal agreement between an egg donor and the recipient individual or couple who wish to conceive. The agreement sets out the parties’ intentions in anticipation of donation, including their legal rights and obligations.

Why do I need an egg donation agreement?

For known donors, fertility clinics require an egg donor agreement to be in place prior to the commencement of any fertility treatment.

An egg donation agreement allows you to be sure that the expectations around the conception, pregnancy and upbringing of the child are agreed upon by all parties and clearly articulated. This can, for instance, include disclosure of medical history, medical testing, ongoing disclosure obligations, confidentiality and social media, reimbursement of expenses, relationship with the child, and ownership and future use of any remaining frozen ova and embryos.

The agreement contains strong language that the egg donor is not a parent of the child, that she will have no guardianship or decision-making authority, and no rights to seek parenting time with the child (although there can be flexibility in this regard, if the parties desire). The agreement also protects the egg donor from having any obligations to financially support the child by preventing the intended parents from seeking financial contributions including child support. The agreement will also make it clear that the donation is done on an altruistic basis.

It is very risky to use a boilerplate agreement from the internet as these templates are not tailored to your unique circumstances and do not take into account the legal developments in an area of law that is rapidly evolving. The agreement might therefore be incomplete, based on legal principles that are outdated, or include terms that do not apply to your case. There is also a risk that the agreement will not be enforced if challenged in court if it was not properly executed or if the parties did not obtain independent legal advice.