Can Gay Couples Use a Surrogate in Canada?

Surrogacy is a form of fertility treatment where a woman that is known as the surrogate agrees to carry and deliver a baby for another individual or a couple, who are called the intended parents. After the birth of the child, they then assume legal parenthood as well as take responsibility for the upbringing of the child. People ask “Can Gay Couples Use a Surrogate in Canada?” It is important to know that family building comes in diverse ways, with there being a possibility for couples who previously could not hope of having biological children of their own, to have it via surrogacy. An example is couples who are infertile or same-sex couples. 

Surrogacy is still controversial with some countries banning it completely, others like Georgia having strict regulations regarding it, while some other countries do not have any specific regulations for it. In many countries like Russia and Georgia, surrogacy is reserved for only heterosexual married couples. In other countries like Canada, they do not discriminate on the type of couple that can have surrogacy.

What is the surrogacy process in Canada like?

Is surrogacy legal in Canada? Surrogacy is legal in Canada. However, the treatment cannot be profited from or commercialized. This means that it is illegal for any party to make any profit from the surrogacy proceedings. In Canada, the surrogacy contract, though it is a requirement cannot be enforced. Ideally, the surrogate is legally allowed to volunteer herself for the surrogacy process without any incentives or coercion from either the intended parents or their agents. This is apart from the reimbursements that are due to the surrogate for all her reasonable expenses that can be tied directly to the surrogacy process. 

Surrogacy agencies are also banned in Canada from arranging the services for compensation or charging fees for the management or overseeing of the surrogate’s pregnancy or cycle. This means that in Canada, ideally, the surrogacy arrangement should be conducted independently in accordance with the law. Also, even though the surrogacy contract or agreement is not enforceable, it is still a requirement by fertility clinics before they can conduct an embryo transfer for the surrogate. The law allows that surrogacy contracts can be used by the intended parents as evidence that they want to be the legal parents of the child, not the surrogate. 

The agreement or contract should also serve the goals, interests and specific wants of both the surrogate and the intended parents. After the birth of the child, with written consent from the surrogate, the intended parents can then begin the proceedings for a birth registration and parentage declaration for the child, with help from their surrogacy lawyer.

Can Gay Couples Use a Surrogate in Canada?

In Canada, the passing of the “All Families are Equal Act” marked a great step for the Canadian surrogacy environment or system. This act ensured that the law accepted the legal status of all parents who sought surrogacy in Canada. This is regardless of their sexual orientation, gender identity or the manner in which the baby was conceived. This came as welcome news, especially for same-sex couples that wanted to use surrogacy to grow their families, who had prior to this been limited to adoption proceedings. It meant that they could then legally pursue surrogacy and become parents of babies that had biological relationships and link with them. This clarifies whether gay couples can use a surrogate in Canada.

Surrogacy agreements for surrogates

The surrogacy agreement or contract is a very important document for a gay couple after they have found a suitable surrogate. This is a written agreement between the surrogate and the couple, the contents of which states that:

• The surrogate will be the birth mother of the child
• After the delivery, the intended parents will take the child
• The intended parents will become the legal parents of the child after its birth

In the absence of this contract before the child is born, the birth mother or the surrogate is considered by law as the legal parent of the child. Another important requirement by the law is that the contract must be reviewed by the independent legal counsel of each of the signing parties. This means that the surrogate is legally required to have her own lawyer who must go through the contract and make her understand her roles and requirements before she signs. 

Some more requirements of the surrogacy agreement

The legal counsel of the intended parents will write the agreement to ensure also that the goals and expectations of the intended parents are properly represented in the contract. After the child is born, in order for the intended parents to become the legal parents, the following must have happened:

• None of the parties must have withdrawn from the contract prior to the conception of the child.
• The surrogate will hand over a written statement after the birth of the child surrendering it to the intended parents. A surrogacy agreement will not suffice as it is not proof of consent. However, it can be used as evidence to show intent in the instance that there is a dispute between the parties after the birth of the child.
• The intended parents then take the child into their care.

There are also instances where the intended parents agree with the surrogate prior to the conception that they will all parent the child together. In such cases, all the parties will be legally recognized as the parents of the child. 

Important things to know as a gay couple regarding the surrogate’s reimbursement 

The surrogacy process in Canada is special. Canada practices altruistic surrogacy. Therefore, the surrogate cannot be reimbursed for their expenses connected to the surrogacy from another source. This is the reason that the surrogate must certify that she has not received any reimbursement from another source before she can be reimbursed. 

In Canada, the surrogate must not profit from surrogacy; it is illegal. This is why the intended parents have to work with only agencies that understand the regulations and have a solid financial plan or program in place in order to make sure that the surrogate complies with the law. This will not only serve to protect the intended parents but the surrogate as well. It is also required by law that all documents relating to the surrogacy like receipts, documents for reimbursements and invoices, should be kept for at least six years. It is a new requirement under the surrogacy regulations in Canada.