Frequently Asked Questions for Intended Parents

Surrogacy in Canada is a legal option and a highly fulfilling alternative for singles and couples who need assistance creating or expanding their family. If you are looking to become a parent through surrogacy you will have many questions and be faced with overwhelming decisions. 

 

Below you can learn more about the types of surrogacies in Canada, surrogacy contracts, and the legal proceeding called a Parentage Declaration, which takes place upon the birth of the child. If you have any further questions, don’t hesitate to contact us.  

 

General Questions and Answers about Fertility Law

Is surrogacy legal in Canada?

Yes, surrogacy is legal in Canada.  It is government-regulated, which means that there are laws in place that protect both Intended Parents and Surrogates.  What is not legal is surrogacy for profit.   You cannot pay someone to be your surrogate.  But she is entitled to reasonable reimbursable expenses.


Can a surrogate be paid in Canada?

No, a Canadian Surrogate cannot be paid to participate in surrogacy.  However, she is entitled to be reimbursed for expenses and possibly net lost wages that she incurs because of the surrogacy.  


What is gestational surrogacy?

Gestational Surrogacy is where the Surrogate carries a baby that is not genetically related to her.  In other words, the embryo transferred to the Surrogate is created using the Intended Parents’ sperm and egg, or with donor eggs and/or sperm or donated embryos.


What is traditional surrogacy?

Traditional Surrogacy is where the Surrogate is genetically related to the Child.  This means that she either participates as an egg donor during the IVF process, or the pregnancy is initiated without the assistance of a fertility clinic.  For a traditional surrogacy, there are many additional legal issues involved, due to the genetic link between the Surrogate and the Child.   It is important to discuss these issues with an experienced fertility lawyer.


Can my Surrogate have a home birth?

Yes, we assist in many surrogacies where the Surrogate and the Intended Parents decide that they would prefer a home birth to a hospital birth.  Of course, this is an important decision that needs to be made by the parties, together.  We normally add a provision into the surrogacy agreement that says that the Surrogate will give birth in a hospital if her doctor or midwife deems the pregnancy to be high-risk. 


Do I need to purchase health insurance for my Surrogate or my baby?

You do not need to purchase health insurance for your Surrogate.  If you do not have provincial health coverage (you are not a resident of Canada), you will need to ensure that you obtain health insurance to cover your baby’s medical costs after Birth.


How does COVID-19 impact a surrogacy journey?

Early in the COVID-19 pandemic there were significant impacts to the surrogacy process – as a result, we created new processes and procedures to navigate the travel limitations and in-person meeting concerns.  We are happy to say that COVID-19 now has almost no impact on our surrogacy processes and procedures.

 


Can I ask my surrogate to be vaccinated?

Yes, you can ask your Surrogate to be vaccinated against Covid-19, and other health concerns.  However, you can never force a Surrogate to obtain a vaccine she does not wish to take.  

It is important for Intended Parents and Surrogates to be open and honest about their vaccination status and preferences.  We recommend that this information be included in any initial discussions, so that the parties can ensure they are comfortable with each other’s preferences.  


Do I need to work with a surrogacy agency?

No, Intended Parents and Surrogates are not legally required to work with a Surrogacy Agency.  We do work with clients who are doing “independent” journeys with no agency involvement.   

However, we recommend that the parties carefully consider the benefits of  a surrogacy agency, which can assist with:

  • facilitating communication and planning with the fertility clinic;
  • managing reimbursable expenses, and ensuring that the requirements of Canadian law are met with respect to reimbursements; 
  • facilitating and supporting the relationship between the Surrogate and the Intended Parents; and
  • any concerns that arise before, during, and after the surrogacy.

Do I need to work with a Fertility Clinic for my Traditional Surrogacy? 
Even if you are planning a Traditional Surrogacy, we recommend that you consider ensuring that all parties are physically and psychologically screened prior to starting your surrogacy project – often, this will involve a clinic.  However, we work with clients who plan pregnancy via home insemination, and choose not to involve a clinic.

Questions and Answers About Surrogacy Contracts

What does the surrogacy agreement typically cover?

A surrogacy agreement will cover many topics, which include:

  • that the Intended Parents are the only parent of the child;
  • how the Surrogate will take care of herself and the baby during the pregnancy; 
  • the process for establishing the Intended Parents’ parentage after the birth;
  • the reimbursable expenses and net lost wages the Surrogate can claim during the process;
  • risk assignment; and
  • it will also address topics such as abortion, miscarriage, insurance, wills and other unexpected events during the pregnancy.

What are reimbursable expenses?

Reimbursable expenses are the expenses that a Surrogate incurs over the course of the surrogacy project.  This may include:

  • net lost wages;
  • childcare;
  • medication costs; 
  • travel expenses; 
  • body care / pregnancy support expenses;
  • wellness expenses;
  • insurance expenses;
  • mileage expenses;
  • communication expenses;
  • additional food expenses; and 
  • other items that the Surrogate needs, or spends which are directly related to the surrogacy.

For expenses to be reimbursable, they must meet the requirements set out in Canada’s surrogacy laws, and they must be supported by documentation proving the loss / expense.


What are bedrest expenses?

“Bedrest expenses” is a term that refers to any additional expenses a Surrogate incurs if a doctor or midwife determines that the Surrogate is unable to continue her work (either full time or part time) or care for her home / children in order to protect her own health or the health of the baby.  These can include:

  • childcare expenses (if she cannot care for her children);
  • housekeeping expenses (if she cannot do physical work to care for her home); and
  • net lost wages (if she must stop working or reduce her work hours for her health or the health of the fetus).  

Bedrest expenses must be recommended in writing by a doctor or midwife who is caring for the Surrogate, and must be supported with receipts, invoices, paystubs, and other documentation to prove the Surrogate’s loss.  


Can the Intended Parents use the same lawyer as the Surrogate for the Surrogate Agreement?

No, the Surrogate must use a different lawyer from the Intended Parents. This is to protect both the Surrogate and the Intended Parents, and ensures that the parties are able to reach a balanced agreement

Several Canadian provinces have legislation which requires that all parties to a surrogacy agreement had independent legal advice at the contract stage


Questions and Answers About Establishing Parentage For Your Child

Will my partner and I be listed as parents on our baby’s Birth Certificate?

Yes!  We can list both Intended Parents, or only one parent (according to your preference).  It does not matter whether the Intended Parents are same-sex or heterosexual


My same sex partner and I are not married.  Will this pose a difficulty at Birth?

No.  In Canada your marital status has no impact on establishing your parentage.  Your child can have one of your surnames or both.  


I am single – will my Surrogate’s name be on the Birth Certificate?

Normally, in most Canadian provinces, the Surrogate’s name will not appear on the Birth Certificate.  However, there are some Intended Parents who come from countries that will not recognize a Birth Certificate with two men on it.  Alternatively, some countries require the Surrogate to stay on the Birth Certificate.  We work with lawyers in your home jurisdiction to make sure that we fully understand what your Birth Certificate needs to say.


How long does it take for me to obtain a Birth Certificate showing my partner and I as the only parents of the Child?

Generally, in Alberta we can obtain a Birth Certificate listing the Intended Parents as the parents of the Child within 14 days of the Birth.  The timeline is similar in most other Canadian provinces and we have a presentation on our website which shows the differences in the parentage process from province to province


How do we fill out the paperwork in hospital?

We will assist you at the time of the Birth – our job is to walk you through the forms and documents step by step.  We take care of the paperwork so that you can focus on your new baby.  


My spouse and I are from overseas.  How long will we have to stay in Canada after our baby is born?

You will normally need to remain in Canada for 3-4 weeks after your Child’s Birth.  During that time, we will obtain a court order, birth certificate, and passport (if you are leaving Canada).  


I live in another Province.   How long will I have to stay in the Province where my baby is born after the Birth?

For our domestic clients, if your baby is born in Alberta, we will complete the parentage documents with you within 24 hours of the Birth.   You can return home after that, as long as your baby is medically fit to travel.   You will be able to order your Birth Certificate online within about 10 to 14 days of the Birth, after we have completed the court application.

For our clients who are having a baby in a province other than Alberta, you can typically travel home within 3-7 days of the Birth and you can order your Birth Certificate online after completion of the parentage process applicable to that province.  


Questions and Answers About Fertility and Surrogacy Legal Fees

What is your approach to legal fees / billing?

We work on a fixed-fee basis.  We do not charge by the hour.  This allows our clients to have certainty to plan the financial costs of the legal side of their surrogacy journey.  

We also do not charge for introductory calls.  We do not put time limits on our introductory calls.  We want to be certain that you feel comfortable and supported and sometimes that means that we will take more than an hour with you to ensure that your questions are answered