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.