Canadian Law for Family-Building
Federal Law
Aspects of fertility law in Canada are governed by the Assisted Human Reproduction Act, SC 2004, c.2 (the “AHR Act”). This is a federal Act and applies across Canada.
Surrogacy and egg/sperm/embryo donation in Canada are legal, but paying a fee for this assistance is NOT legal. Therefore, the AHR Act:
Prohibits payment of a fee to a surrogate or egg/sperm donor.
Provides for payment of expenses in accordance with regulations, and a receipt must be provided for the expense.
Legal Parentage
Once a baby is born via surrogacy or egg/sperm/embryo donation, further legal steps need to be taken for the intended parents, and not the surrogate/donor be declared the child's legal parents. Legal parentage is determined by provincial law where the child is born. In some situations, a declaration of parentage or an adoption application is necessary to ensure that the intended parents are recognized as the legal parent of the child born through ART.
Ontario Equal Families Act
The All Families are Equal Act changed the law in Ontario so that in many circumstances, declarations of parentage or second-parent adoptions are no longer necessary to register the child's birth in the parent's name. However, there are still some cases where an application for legal parentage should be brought before a court. A lawyer specializing in fertility and surrogacy law can provide guidance on individual requirements.
Surrogacy Agreements
A Surrogacy Agreement must respect the AHR Act and provincial and territorial laws, so the surrogacy arrangement may be significantly different depending on where the surrogate and intended parents live. Once the intended parents and the surrogate mother have decided that they would like to work together in building the intended parents' family, a surrogacy agreement must be drafted and negotiated, setting out each party's legal obligations and rights to the agreement.
The AHR Act explicitly places the following constraints on surrogacy in Canada:
No person shall pay consideration to a female person to be a surrogate, offer to pay such consideration or advertise that it will be paid.
No person shall accept consideration for arranging for the services of a surrogate, offer to make such an arrangement for consideration or advertise the arranging of such services.
No person shall pay consideration to another person to arrange for the services of a surrogate, offer to pay such consideration or advertise the payment of it.
In short, a surrogate can only be repaid for out-of-pocket costs if they are directly related to the surrogacy and usually when a receipt is attached. Likewise it is illegal for professional services that would manage your surrogacy program or recruit a woman to become your surrogate.
Reputable clinics will not perform an embryo transfer to a surrogate without ensuring that she first obtained independent legal advice. The same law firm cannot provide legal advice to the intended parent or parents and the surrogate; two law firms must be involved in the legal process.
Egg, Sperm and Embryo Donor Agreement
When planning to use an egg, sperm or embryo donor, it’s recommended that the intended parents enter into an agreement for each donation in Canada, regardless of whether the donation is anonymous or known.
The most important issue for a donor agreement is the intended parentage of the child born through a donor. The agreement should also address the desired relationship between the parties and an opportunity to share health and other information.
Most Canadian clinics will insist on a donation agreement prior to a retrieval when the donor is known to the intended parents. Both the intended parents and their donor should obtain independent legal advice.
