Gestational Surrogacy
Surrogacy is legal in Canada only when the Gestational Carrier receives compensation for her effort, without her being able to profit by signing a commercial surrogacy contract.
Under the Assisted Human Reproduction Act passed in 2004, the surrogate may only be reimbursed for pregnancy-related expenses. While commercial surrogacy is common in the U.S., a surrogate in Canada cannot receive any salary or fee to carry a pregnancy to term. This form of surrogacy is called “altruistic surrogacy.”
The Assisted Human Reproduction Act (the “AHRA”) prohibits various activities related to surrogacy.
Surrogacy itself is not prohibited, but payment of consideration or offering payment to a surrogate is a prohibited act. In accordance with Section 12 (which has not yet been proclaimed), all reasonable expenses such as out-of-pocket expenses will be reimbursable to her. At some point, the Federal Government will proclaim regulations to this section that may limit or regulate the types of expenses that can be reimbursed otherwise, but until that date, all expenses can be considered as such, provided they are reasonable and related to the surrogacy.
In the absence of a legal statute clarifying filiation, there is always the possibility that a surrogate may claim parental rights which may include custody of or access to the child. Many intended parents draw up agreements in order to make clear the intentions of each party. Most clinics in both Canada and the United States require that surrogacy contracts be signed before embryo transfer. In the United States, case law has placed great emphasis on the enforcement of the pre-conception intention of all parties, as evidenced in an agreement.
Thanks to the hard work of a few individuals, surrogacy for same-sex couples in Ontario has become commonplace.
Lesbian couples often turn to known sperm donation to conceive their children. All parental rights must be negotiated and documented in advance. Lesbian couples should consult with an attorney in order to maximize the intent possibilities of both parties regarding the paternity and custody of the future child.
“Spousal donations” are less common, but sometimes one of the partners will carry a child that is genetically linked to her partner. IVF is necessary to achieve this result. Many IVF clinics treat the situation as an egg donation or as a surrogacy, but both approaches are not appropriate. If you are considering this procedure, make sure that medical consents are clear and precise. In the event of a relationship breakdown and custody dispute, an inappropriate medical consent can be used later in court as evidence of intent.
In Ontario, the post-birth process for LGBT surrogacy clients is exactly the same as for the heterosexual community. As birth registration is governed at the provincial level, an attorney should be consulted to review the details of the agreement.
