The Process of Surrogacy for Gay Couples in Canada

Surrogacy is a long and complex process where a woman who is known as a surrogate carries and delivers a baby for another person or a couple. The person or couple referred to as the intended parents then take the baby and assume legal parenthood and responsibility. Family building these days come in different forms. It is becoming increasingly possible for individuals who previously could not have biological children of their own to have them. In this instance, surrogacy is an important fertility intervention for these people. This brings about the discussion of the process of surrogacy for gay couples in Canada. A good example of this is same-sex couples who desire to expand their families with children who have genetic or biological relationships with them. 

This practice has increased and gained popularity so much so that surrogacy agencies are bringing out specialized services, especially for same-sex couples. Surrogacy is a controversial topic, and different countries have different regulations and rules guiding the treatment. Surrogacy for gay couples is not legal in many countries like Russia and Georgia. However, in other countries like Canada, Cyprus and even Kenya, gay couples are not discriminated against from having the surrogacy treatment.

Surrogacy in Canada 

The surrogacy treatment in Canada is legal but cannot be commercialized. This means it is illegal for a surrogate to profit from a surrogacy treatment, and the surrogacy contracts are not enforceable. Ideally, in Canada, surrogacy is only allowed if the surrogate herself volunteers to carry the baby without any financial compensation apart from the reimbursement for her reasonable expenses that are tied directly to the surrogacy treatment. This is also known as altruistic surrogacy. Surrogacy laws in Canada are complex.

Surrogacy agencies are also prohibited by law from arranging the services for compensation or charging fees for overseeing the surrogate’s pregnancy or cycle. This implies that every surrogacy agreement in Canada has to be carried out legally and independently. A surrogacy agreement is also required by most clinics before they can conduct an embryo transfer. The legislation provides that this agreement will be used as evidence that the intended parents want to be the legal parents of the child, not the surrogate. The agreement made will be suited to the goals and specific needs of both the intended parents and the surrogate. 

Another important thing worth noting is that after the birth, there will be proceedings for a birth registration and parentage declaration, these will be handled by the surrogacy lawyer. International surrogacy is allowed in Canada, as well as gay couples and surrogacy for single males.

Recommended process of surrogacy for gay couples

After the gay couple has found a suitable surrogate, they meet with her and have an agreement about the surrogacy process. The next step is for the surrogate and the intended parents to enter into a written agreement which will be signed by both parties. The contract will clearly state the following:

• The surrogate will be the birth mother of the child
• After the child is born, they will be handed over to the intended parents
• The intended parents will become the legal parents after the birth of the child

In the absence of a surrogacy agreement before the birth of the child, the birth mother is considered the legal parent of the child. In the process of writing the contract, it is important and required by law for both parties to have their own separate legal counsel. It is an important step in the process of surrogacy for gay couples in Canada. The legal counsels will draw up the agreement, make sure that their clients understand their roles and responsibilities and ensure that the terms of the contract are suitable for them.

What happens after the birth of the child?

After the birth of the child, for the intended parents to become the legal parents, the following must happen:

• None of the parties must withdraw from the contract before the conception of the child
• The surrogate will give a written statement after the birth of the child surrendering it to the intended parents. A surrogacy agreement is not proof of consent. However, it can be used as evidence to show intent in the instance that a dispute arises after the birth of the child.
• The child is given to the intended parents.

There are also cases where the intended parents and the surrogate agree before conception that they will all parent the child together. In such cases, all parties will be legally recognized as the parents of the child based on the surrogacy laws in Canada.

Things to note when navigating the surrogacy process as a gay couple in Canada  

Surrogates cannot be reimbursed for their reasonable expenses tied directly to the surrogacy from another source. This is why before a surrogate will receive reimbursement, she must certify that she has not received any reimbursement from any other source. An example of this is that for medical expense reimbursement, a surrogate cannot submit the expenses to be reimbursed to her medical insurer and the intended parents, as this will be termed double recovery. Another example is in the case of reimbursement for wage loss. The surrogate must not have received wage loss benefits from other sources like disability benefits or employment insurance, then also claim full benefits from the intended parents. Only the difference between the net wage loss and the benefits received may be claimed by the surrogate. 

In Canada, the surrogate cannot profit from the surrogacy; it is the law. This is why the intended couple should work with a surrogacy agency that understands the regulations and has a solid financial program in place to ensure that the surrogate complies with the laws and regulations guiding surrogacy in Canada. This will not only protect the intended parents, it will also protect the surrogate. Surrogacy documents must be kept for at least six years. This is a new requirement under the regulations in Canada. It states that the documents for reimbursement like receipts and invoices must be kept for six years.

Declaration of expense

This must be provided by the surrogate and signed. The declaration usually contains the following information:

• Their name and address
• The nature of the expenditure incurred
• The amount reimbursed
• The date the expenditure was incurred
• With travel expenses, the address points of departure, the destination as well as the distance in kilometres
• A statement saying the expenditure was incurred due to the surrogacy
• A statement for each expenditure incurred due to the surrogacy
• A statement for each expenditure saying the amount has not been reimbursed by any source other than the intended parents is to confirm that they have not profited through double recovery
• A statement that all of the information contained in the declaration is accurate and complete
• A copy of the physician’s note or written recommendation authorizing the expenditure

After the reimbursements, the intended parents or any of their representative agents must sign the declaration that they have reimbursed the surrogate. The process of surrogacy for gay couples in Canada is similar to that of straight couples.