Surrogacy & Fertility

SURROGACY LAW IN CANADA can be difficult to understand. It is important to work with an experienced legal team which is very familiar with the process of establishing parentage when Assisted Reproductive Technology (“ART”) is involved.

Ellen Embury and Rachel West specialize in surrogacy and fertility law in Alberta and throughout Canada. Ellen Embury is widely regarded as a leader in the area of third party reproductive law in Canada.

Our team guides and counsels Intended Parents, Surrogates, Egg and Sperm donors quickly and accurately through the legal processes involved in egg donation, sperm donation and surrogacy.

We have helped hundreds of couples and individuals who wish to become parents, as well as Surrogates and Donors, with all aspects of surrogacy and fertility law.

To Intended Parents

We understand that having a surrogate carry your baby might be a difficult thing to envision. There may be people in your world who don’t understand. There are times that you will feel that the process is complicated, or out of your control. We understand surrogacy and we can help. We do this every day.

We know that you didn’t choose infertility or your sexual orientation. We know that surrogacy is a wonderful option for couples who need help creating a family. We are experts and can guide and assist you every step of the way.

Your first step is to call us. We can direct you to fertility clinics, surrogacy agencies and answer any question you may have about surrogacy in Canada. We are proud to say that surrogacy babies are born every week in our practice. We are here to support you and help to create your family.

We help through the entire surrogacy process

We work closely with designated Judges to ensure that parentage declarations are obtained within days of the birth. We assist with the entire process – including obtaining the Birth Certificate from Vital Statistics and (where applicable) passports.

Normally a Court Order declaring the Intended Parents to be the only legal parents of the baby will be in place within two business days of the Birth and typically Birth Certificates will be obtained within about 10 business days of the Birth. This eliminates the need for adoption in surrogacy. We focus on the legal aspects of parentage while you focus on your new baby.

Surrogacy agencies from across Canada often refer their clients to us for assistance with surrogacy legal services in Alberta. We also work closely with fertility clinics across Canada and the United States.

To Surrogates

Without you, loving families would be unable to have children of their own. Giving an infertile family the gift of life makes you a truly exceptional and extraordinary woman.

In order to ensure that your surrogacy experience is the wonderful journey it should be, it is important that you have someone who will be a strong voice for you at the contract negotiation stage, and who will ensure that you and your family are protected from the unexpected. It is our job to protect you during a surrogacy journey and to truly ensure that you are looked after and protected during the process, even when the unexpected happens. We can’t wait to work for you!

Testimonials

Everything went perfectly

“When we began our surrogacy process, many Intended Parents told us that Ellen had been their lawyer and everything went well for them. We trusted her with our surrogacy agreement, parentage application and legalizing the Birth Certificate. As everything went perfectly, we decided to use her services for our second surrogacy process.”

~F & L

Thankful for all your help

“We are absolutely smitten with him and will always be thankful for all your help!”

~R & M

Professional and trustworthy

“We are a German same-sex couple and we feel incredibly grateful and blessed to have become parents of a wonderful baby boy by surrogacy in Canada. Ellen Embury and her team were an integral and awesome part of our journey. Everybody who embarks on the journey of surrogacy knows how many obstacles there are to be overcome and how the feelings of wonderful anticipation are mixed with nervousness and fear.

Working with their team has been wonderful because they handled everything incredibly professionally and trustworthy. We knew that all the legal issues in their hands were going to be taken care of very well—which is wonderful when there are still so many other things that could potentially go wrong. We can only recommend working with them and will do so in the future!”

~S, P & P

Very knowledgeable, caring person

“We would recommend Ellen to anyone. She made each step simple for us, including bringing a translator to the hospital so that we would not be confused about the legal documentation. She followed through to make sure that our passports came through so that we could travel back to our home country with our daughter. She is a very knowledgeable, caring person and we are so grateful to her.”

~C & P

Our interests were well protected

“Ellen understood our concerns right away and she gave us very good advice in choosing our surrogate. She provided us with significant advice when we needed to choose a new surrogate and took steps to ensure that our legal and agency fees would be minimized. Throughout this adventure, we always felt supported by Ellen and we were sure that our interests were well protected. It goes without saying that we warmly recommend Ellen to you.”

~J & F

Helped us make it possible to have a family with our own biological children

“Ellen Embury simply put is AMAZING! Every part of the process with her has been great. My husband and I made an appointment to meet with her, in the appointment she learned that we needed expedited service, as we walked in with a couple days’ notice with an egg donor, surrogate and clinic all waiting on lawyer documents to be created and signed.

Ellen made us feel incredibly comfortable, and helped guide us through a very hard-to-understand journey to create a family as a same-sex couple. She was so quick to get all parties and documents on the same page, created and signed in the incredibly short deadline that we presented to her. We’re now pregnant with twins and only halfway through our pregnancy, but the continued support we receive from Ellen is outstanding! Thank you Ellen so much for everything you’ve done for us! You’ve helped us make it possible to have a family with our own biological children.”

~D & D

A great surrogacy experience … twice!

“Thank you Ellen for your many contributions and expertise toward a great surrogacy experience, not only once but twice! We appreciate your knowledge, patience, advice and ability to streamline the process.”

~S & P

Thank goodness we found Ellen

“We had read all sorts of things online about different laws and had a chat to a lawyer in Edmonton who gave us, as we discovered later, all the wrong information. This made us scared that we would only be able to have my husband’s name on the birth certificate even though we were the biological parents.

THANK GOODNESS WE FOUND ELLEN! She explained everything. Her demeanour is warm and friendly with a no-nonsense attitude to her workload and her client’s needs. From a month of stress and worry, to instant relief and understanding of the system. A simple email with point form of exactly what to do on the day our daughter was born made everything easier. If we had any questions, Ellen would always reply with an answer promptly.

We were so very happy to know that when our amazing surrogate offered to carry another baby for us, that Ellen would be there for us again. I think Ellen was just as happy to be helping us as we were having her do so. We certainly recommend Ellen with anyone who is looking into surrogacy in any way, shape or form whether you are from Canada, Australia or any other country.”

~F & T

FAQs: Surrogacy Laws in Canada

Surrogacy in Canada is a legal option and a highly fulfilling alternative for singles and couples who cannot create a child on their own, either due to infertility or because they are gay. 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.

What types of surrogacies are there?

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. The baby in a genetic surrogacy is not related to the woman who carries him or her.
Donor Egg Surrogacy - Gestational: where the Intended Father is genetically related to the child, but the Surrogate and the Intended Father’s partner are not related to the baby. Donors in Canada can be either known or anonymous.
Donor Sperm Surrogacy - Gestational: where the Surrogate is not genetically related to the baby but carries the Genetic Mother’s ova, which have been fertilized by a sperm donor, who is either known or anonymous.
Donor Egg and Donor Sperm Surrogacy - Gestational: where the Intended Parent or Parents are not genetically related to the child, nor is the Surrogate.
Traditional Surrogacy: where the Surrogate is genetically related to the child that she bears for the Intended Parent Parents.

It is important to understand that some Canadian provinces require at least one of the Intended Parents to be genetically related to the child in order to quickly recognize parentage in surrogacies. It is important to clearly understand the law in the Province in which your baby will be born.

Is surrogacy legal?

In Canada, it is legal to enter into a surrogacy agreement.

The method of getting the Intended Parents onto the Birth Certificate will depend on which province the baby is born in. In Alberta, the Courts routinely grant Parentage Declarations in all types of surrogacies – including traditional surrogacies. It is not necessary to adopt your baby in a traditional surrogacy in most Canadian provinces, including Alberta.

The process for getting the Intended Parents onto the Birth Certificate does differ from province to province. Ellen Embury and Rachel West work closely with surrogacy lawyers in every Canadian province to ensure that their clients’ parentage is recognized as quickly and as cost-effectively as possible, no matter where the baby is born.

Can a surrogate be paid?

In Canada, a Surrogate cannot be paid. She is entitled to reasonable reimbursable expenses which are related to the pregnancy, birth and post-birth period. These expenses will be clearly laid out in the surrogacy contract.

In 2018, the Canadian government proposed Regulations under the Assisted Human Reproduction Act. These proposed Regulations are designed to clarify the types of expenses that a Surrogate or Donor can claim from the Intended Parents. It is essential to work with a lawyer who understands the proposed Regulations and their implications.

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

Can all of the parties to the contract save expenses by using the same lawyer?

Many clients ask if it is possible to “share” an experienced fertility lawyer to minimize expenses. Typically this is not a good idea. In jurisdictions which require Court approval of the surrogacy contract, the Court will want to see that the Surrogate and her partner (if applicable) had independent legal advice and were in no way forced, coerced or pressured into the arrangement.

Ellen Embury and Rachel West can provide the parties with a list of lawyers who can provide independent legal advice.

Typically, the surrogate or donor’s legal expenses are paid by the Intended Parents.

How long does the process take?

The entire process, including obtaining independent legal advice, can usually be completed in about two to four weeks.

How do we fill out the paperwork in the hospital?

Ellen Embury and Rachel West will provide you with guidance with respect to this process, and the information to provide to hospital staff with respect to the Surrogacy. For Alberta births, our staff will come to the hospital to ensure that the process is as smooth as possible. Having a new baby is stressful enough – we will deal with the legal process of getting the Intended Parent(s) on to the Birth Certificate and dealing with Alberta Health regarding the baby’s health insurance.

How does the parentage declaration work once the child is born?

In each Canadian province, the process for recognizing parentage is somewhat different.

ALBERTA
In Alberta, the Parentage Declaration revolves around the definition of “mother” in various pieces of 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.

A process has been developed under the Family Law Act called a Parentage Declaration, whereby a Court Application is brought within days of the baby’s birth, to have the intended parents “declared” the legal parents of the baby. While this process is underway, the Intended Parents have full physical custody of the baby.

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. This process completely eliminates the need for an adoption in the case of genetic, donor egg and donor sperm surrogacies. This is good news, because a legal adoption can take months and involve the intervention of social services.

Normally, the Intended Parents will be in a receipt of the new Registration of Birth within about 2-3 weeks of the child’s surrogacy 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 Intended Parents reside in a Canadian province other than Alberta, they do not need to stay in Alberta while the process is completed. They can return home as long as the baby is medically cleared to travel. Once the legal process is complete (in the 2-3 week timeframe) they can order the baby’s Birth Certificate online.

International Intended Parents will need to stay in Canada until the process is complete and they can obtain their baby’s passport, however, they are free to travel within Canada while they wait for the paperwork to be completed. In Alberta, this process is typically complete within 20-26 days from the Birth.

OUTSIDE OF ALBERTA
Ellen Embury has clients across the country and around the world whose children have been born in every Canadian province. Ellen is familiar with the process in other Canadian jurisdictions and works closely with lawyers in all provinces to ensure that her clients understand exactly what will happen at the time of the Birth and the timing and cost for obtaining their Birth Certificate and Passport (if applicable).

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.

What about same-sex couples?

Canada welcomes same sex couples with open arms. In every province except for Quebec, both fathers can be listed on the Child’s Birth Certificate. For same sex female couples, both mothers can be listed on the Birth Certificate. In several provinces it is possible to have more than two parents listed on the Birth Certificate, allowing for parentage to be recognized in other forms of non-traditional families.

Do Egg and Sperm Donors have legal rights in Canada?

Most Canadian provinces have enacted legislation which expressly states that egg and sperm donors do not have presumptive parental rights. This is the same regardless of whether the donor is known or anonymous. “Presumptive” parental rights means that a donor is not automatically considered a parent, but could try to rebut the presumption with evidence of parental intent. A properly drafted legal agreement is always important to avoid this possibility and to protect all parties to the arrangement.