Fertility LawSurrogacy

Surrogacy in Canada

Starting a family is a deeply personal journey, and for some, the path to parenthood may not be straightforward. Surrogacy offers a unique and invaluable opportunity for those who face challenges in conceiving or carrying a child to term. As you consider this option, it's essential to understand the intricacies, legalities, and personal considerations involved. 

What is surrogacy?

Surrogacy is an arrangement in which a woman, typically referred to as the “surrogate” 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.

Reasons people choose surrogacy

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

• Primary infertility, being the inability to become pregnant or carry a baby to term
• Secondary infertility, being the 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.

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 biologically related to 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 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. 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.

Surrogacy agreements

In British Columbia, there must be a surrogacy agreement in place before a child is conceived to ensure the intended parents will be named as the parents of the child on the birth certificate through registration with Vital Statistics after the birth. 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 either a declaration of parentage must be obtained, or 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. The contract must include specific language to ensure that the intended parents will be able to be registered as the child’s parents at birth.