Considering Surrogacy in Canada? A Beginner’s Guide 

Surrogacy is a type of fertility intervention where a woman who is called a surrogate mother agrees to carry a baby. She gives birth to the baby for another person or a couple that is referred to as the intended parent(s). The intended parents are usually infertile, same-sex, or in some situations where it is not possible to have children themselves. After the baby has been delivered, the intended parents assume legal parenthood and take responsibility for the child. If you are considering surrogacy in Canada, you need a beginner’s guide. Let us walk through the process. 

Where is Surrogacy Legal?

Surrogacy is a long and complex journey that requires a lot of planning before it can be embarked on. The treatment has recently been gaining more popularity globally as a viable intervention for couples that desire children that will have a genetic or biological relationship with them, but otherwise cannot have them by themselves. Surrogacy is a controversial treatment that is subject to different regulations and laws in different countries. In some instances, surrogacy has different regulations in different states in the same country. 

In countries like Russia, it is only open to married heterosexual couples. In Georgia, it is only legal for their citizens and not for foreigners. But, in other countries like Kenya, Cyprus and Nigeria, surrogacy is subject to no specific regulation and is open to anybody who may need it. Meanwhile, in Canada, surrogacy is open to all types of couples, but it must be altruistic. In cases where couples are in countries with unfavourable surrogacy laws and regulations, they can opt to choose other countries with favourable laws. This migration is not only due to laws. Couples can also choose countries where it is cheaper and economical to carry out surrogacy. This migration is referred to as transnational surrogacy and is catered for by agencies known as international surrogacy agencies.

Surrogacy in Canada

The treatment is legal in Canada but can only be altruistic. This means that it is illegal for any party to profit from the surrogacy treatment. Also, while surrogacy contracts are a requirement before the surrogacy can happen, they are not legally enforceable. Surrogacy can only happen in Canada if the surrogate volunteers to carry the baby without any incentives or promise of financial compensation. This is, of course, apart from the reimbursement that she will get for her expenses that are tied to the surrogacy treatment. Surrogacy agencies are also prohibited by law from arranging the services for compensation or charging fees over managing the surrogate’s pregnancy or cycle. This implies that any surrogacy arrangement must be conducted independently following the law in Canada.

What are the types of surrogacy practised in Canada?

Surrogacy can either be traditional or gestational in Canada. Traditional surrogacy is when the surrogate uses her own eggs to get pregnant. She is inseminated with sperm from the intended father. Gestational surrogacy is when the eggs and sperm used to create the embryo are obtained from the intended parents or donors. The embryo is then transferred to the surrogate’s uterus which carries the pregnancy to term and delivers. Regardless of the type of surrogacy carried out, when considering surrogacy in Canada, it must be altruistic. This means that the surrogate is not to be paid, in any form, for giving birth to the baby. She is only to be repaid for all expenses. This is the ultimate beginner’s guide. 

Surrogacy agencies require a surrogacy agreement before they can conduct any insemination or embryo transfer. While they are not enforceable, they can be used as evidence of intent by the intended parents in the case that a dispute arises after the delivery baby. The agreement usually addresses the responsibilities and needs of both parties. After the birth of the baby, there will be legal proceedings for a birth registration and parentage declaration for the intended parents. 

How to find a surrogate in Canada 

It is an important question in the surrogacy process for intended parents. It is usually sorted with the help of a surrogacy agency. There are several criteria to meet before the selection of a surrogate mother. She must meet all of them before being considered. This is to avoid having certain unpleasant issues in the course of the surrogacy. Some of them are listed below. 

• The age to be a surrogate is at least 21 years.
• She must have given birth before 
• She must not have had any reproductive issues before
• She must be physically and psychologically fit. There will be medical and psychological assessments. 
• She must be willing to undergo the surrogacy process for purely altruistic reasons.

Surrogacy Contracts in Canada

The surrogacy agreement is a contract or a written agreement that is signed by all parties that will be involved in the surrogacy. The contract clearly states that the surrogate will be the birth mother of the child. It also states that after the child is born, they will be given to the intended parents who become the legal parents of the child. Since it is altruistic surrogacy in Canada, this is especially important. In the absence of this signed agreement before the birth of the child, in Canadian law, the surrogate is considered the child’s legal parent. 

The surrogate must have an independent lawyer different from the intended parents’ lawyer who will be involved in the drafting of the agreement. Both legal counsels will draw up the surrogacy agreement. Then, they will make sure that their clients understand their roles and responsibilities. They will also ensure that the terms of the agreement are suitable for both parties. When the child is born, for the intended parents to become the legal parents, the following need to occur:

• None of the parties must withdraw from the contract before the child’s conception. 
• After the birth of the child, the surrogate must present a written statement surrendering the child to the intended parents. This is not the same as a surrogacy agreement. 
• The child is placed under the care of the intended parents. 

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

Important Information for Navigating Surrogacy in Canada as a Beginner

The surrogates cannot draw their reimbursement from another source. This is why the surrogate must certify that she has not received any reimbursement from another source before she is reimbursed by the intended parents. For example, in the case of medical reimbursement, the surrogate cannot submit the expenses to her medical insurer and the intended parents at the same time. This act will be termed double recovery, and it is illegal. 

Another example is in the case of wage loss reimbursements. The surrogate must not have received wage loss benefits from other sources, like disability benefits or employment insurance, and claim full wage loss benefits from the intended parents. In this instance, the surrogate is limited to claiming the difference between the net wage loss and the benefits received. It is important to remember that in Canada, it is prohibited for the surrogate to benefit from the surrogacy. This is why the intended parents need to be very careful or at least work with an agency that understands the regulations and has a solid financial program in place. This is to ensure that the surrogate complies with the laws and regulations that guide surrogacy in Canada.