Legality of Surrogacy for Single Parents in Canada

Surrogacy is a process where a woman who is referred to as the surrogate mother agrees to carry a pregnancy to term for another individual or couple that is usually known as the intended parent or parents respectively. The surrogate hands the baby over to the intended parents after delivery who then assume legal parenthood and responsibility over the baby. Where there is only one intended parent, he or she must understand the legality of surrogacy for single parents in Canada.  

Surrogacy is a complicated process, requiring intensive preparation and research before it can be carried out. It also requires a lot of steps that ensure that the parties get the desired results they seek. These steps usually involve consultations from professionals already in the field, extensive counselling from therapists, mental and psychological profiling and testing, as well as medical assessment of both the surrogate and the intended parents to ensure that they can go through rigorous surrogacy treatment.

Types of Surrogacy: Gestational vs Traditional Surrogacy

There are two recognized forms of surrogacy globally; the traditional and the gestational form of surrogacy. Traditional surrogacy involves the surrogate getting pregnant using her eggs through artificial insemination with the sperm of the intended father. Gestational surrogacy involves the creation of an embryo in vitro in the lab using the sperm and egg obtained from the intended parents or donors. The embryo is then grown for a few days and then transferred to the surrogate who then carries the pregnancy to term and delivers it. 

The main difference between the two forms of surrogacy is the existence of a genetic relationship between the surrogate and the baby that is present in traditional surrogacy. Also, gestational surrogacy tends to be more complex and expensive than traditional surrogacy. While traditional surrogacy may seem to be the more attractive option due to its less complex process and less expense than gestational surrogacy, however from a legal standpoint, traditional surrogacy is filled with complications, and very few surrogacy agencies attempt it. Altruistic surrogacy, which can sometimes be grouped under traditional surrogacy, is the only legal type of surrogacy in Canada.

Legality of Surrogacy in Canada 

Another important aspect is the legal consultation, advice and guidance provided by surrogacy lawyers to the intended parents and surrogates. This is a crucial service that cannot be overemphasized in the surrogacy journey. Surrogacy is legal in Canada. However, the Assisted Human Reproductive Act prohibits the acceptance or provision of payment to a woman for the service of surrogacy. This means that it is illegal to pay a surrogate for the service of surrogacy. However, it is legal to reimburse her for the out-of-pocket expenses that she incurred as a result of the surrogacy treatment. This is one of the rights of a surrogate mother in Canada, and also the essence of altruistic surrogacy practised there. Other restrictions and prohibitions that are regulating surrogacy in Canada include:

• The parties involved in the surrogacy proceedings will not accept any consideration for arranging for the services of a surrogate mother, offer to make such arrangements for the consideration or advertise the arrangement of such services.
• The intended parents will not offer to pay or advertise that they will pay a woman to be a surrogate mother
• No one should persuade a woman to become a surrogate or perform any medical procedure to help a woman become a surrogate, especially knowing that the woman is below the age of 21

What is Considered Illegal in Canadian Surrogacy?

These above regulations imply that in Canada, the following practices are considered illegal:

• Paying a surrogate to carry out a surrogacy treatment
• Offering to pay or paying a third party or placing an advertisement to arrange for the services of a surrogate
• Trying to get a woman who is below the legal age to engage in surrogacy through advice or medical procedures

These laws are derived from the guiding principles of Canadian regulations that explain that the exploitation of the reproductive capabilities of children, women and men for commercial gain is strictly forbidden for health and ethical reasons. It is worth noting, also, that Canada allows the altruistic or traditional form of surrogacy. This means that as long as the surrogate is deciding for surrogacy herself, without any coercion or financial or commercial gain, then the surrogacy is recognized under Canadian law. 

Furthermore, while the payment made to the surrogate for the purposes of surrogacy is a crime, the law allows the surrogate to be repaid for all her expenses that are directly tied to the surrogacy treatment. It is also illegal to indirectly make payments for the surrogacy itself. These indirect payments may include payments in the form of credit card bills, school fees or mortgage payments. It is also illegal for intended parents to hire or pay a third party to hire surrogate mothers.

Importance of Lawyers in the Single parents’ surrogacy process

A surrogacy lawyer is crucial in the navigation of the complex Canadian fertility laws. The Canadian Assisted Human Reproductive Act not only governs surrogacy, it also governs even the meeting that happens between the intended parents and the surrogate. This is why it is important to enlist the service of a surrogacy lawyer even before any step in the surrogacy is taken. Once an agreement has been reached with the surrogate concerning the terms of the surrogacy treatment, a surrogacy agreement is drawn by the lawyer. The agreement sets out the legal rights and obligations that are expected from either party in the agreement and the terms that govern the agreement. 

When the baby is born, there are further legal requirements that also need to be met. This is to ensure that the intended parents get declared as the legal parents of the baby and not the surrogate or her partner if any. The surrogate is required by law to receive independent legal advice for the duration of the surrogacy treatment. This means that a lawyer is gotten for the surrogate even before she signs the surrogacy agreement. This lawyer ensures that the surrogate understands her rights and obligations as stated by the surrogacy agreement. 

Reputable fertility clinics or surrogacy agencies will refuse to perform any embryo transfer or artificial insemination on a surrogate without first making sure that they have obtained independent legal advice. Also, the same lawyer or law firm that covers the intended parents cannot cover the surrogate as well. Both parties must be represented by two different law firms.