The Rights of Surrogate Mothers in Canada

How Does Surrogacy Work?

Surrogacy can be defined as a form of assisted reproductive technology where a woman that is usually called the surrogate agrees to carry and deliver a child for another person or a couple. This individual or couple is called the intended parent or parents. The intended parents assume legal parenthood and responsibility for the baby after delivery. Also, the rights of the surrogate mothers are important in Canada. Surrogacy is a complex fertility intervention that requires a lot of planning before being done. 

There are also steps like counselling, consultation from professionals, medical fitness examinations and the like that must be done to ensure the readiness of both parties for the treatment. There are also a lot of legal requirements that must be met, and this requires the input of experienced surrogacy lawyers. They oversee the process from the beginning and mediate in the signing of the surrogacy contracts or agreements. They stipulate the legal requirements and obligations for both the surrogate mother and the intended parents. Also, they work to facilitate the transfer of parenthood from the surrogate to the intended parents.

Finding a surrogate

This is the most crucial and biggest step that the intended parents will make in the entire surrogacy process. Some intended parents in Canada choose to work with a surrogate that they already know or are related to like a close friend or a family member. For others, the task is a bit more challenging. The first step is the decision to either use an agency for the search or embark on the task without an agency. The easier way usually is through an agency. This will ensure that the chosen surrogate will undergo extensive background checks, get psychological, emotional and medical examinations, and the appropriate legal guidance and advice. All these are important before a surrogacy contract is signed by all parties involved. However, some basic requirements that must be met by the surrogate are as follows:

• She cannot be a hard drug or alcohol user.
• She must have had at least one successful pregnancy before the surrogacy
• She must be above the age of 21
• She must not have any chronic illnesses
• She must be willing to undergo rigorous psychological and mental examinations
• She must be willing to take a full medical check-up before starting the surrogacy treatments

Does the surrogate have any legal rights?

The legal rights of a surrogate vary from country to country, and even from state to state within the same country. There usually are no mandatory federal laws that dictate the relationship between the surrogates and the intended parents. Several factors can play a part in determining the rights that a surrogate mother has, including where she lives. 

There are two types of surrogates. There is the traditional surrogate who gets inseminated with the intended father’s or a donor’s sperm to become pregnant. The traditional surrogates get pregnant using their eggs and therefore, are genetically related to the baby. Hence, the surrogate mother can claim her rights to keep the baby. 

The second kind of surrogate is the gestational surrogate. In this type of surrogacy, the egg and the sperm are obtained from either the intended parents or donors. They are then combined in vitro in the lab to create an embryo. The embryo is then grown for a few days before being transferred to the uterus of the surrogate. This means that the surrogate has no genetic relationship with the baby. To a very large extent, the type of surrogacy done can affect the rights of the surrogate.

What are the surrogate’s dues?

The dues and entitlements of the surrogate are to a large extent determined by the surrogacy agreements that were agreed and signed at the beginning of the surrogacy process. Canadian law requires that both the surrogate and the intended parents have independent legal representatives who will be present when the terms of the surrogacy contracts are being outlined. This is to ensure that they understand all the terms in the surrogacy contract and know what they are agreeing to. It also ensures that each party knows their entitlements in any given situation. For example, they should know what will happen in the situation that the pregnancy results in twins. 

Also, depending on the terms outlined in the agreement, the surrogates are generally entitled to the right to have health insurance provided for them, access to psychological help for the duration of the pregnancy, and be well aware of all the relevant medical procedures they will undergo. The surrogates are also entitled to their reimbursements as stated in the contract. This is the form of surrogacy practised in Canada, altruistic surrogacy. In some contracts, the surrogate may also choose their medical teams in the case that they experience side effects from the pregnancy. Although specific compensation or reimbursement may vary between surrogacy contracts, the surrogates have the right to have all their medical and legal services concerning the pregnancy provided for them, with the fees covered by the intended parents.

What rights does a surrogate not have?

Typically, the surrogate does not have parental rights to the baby. This means the surrogate mother should not get attached to the child because the surrogate mother has no rights to keep the baby based on the surrogacy contracts already signed. The intended parents gain parental rights and a surrogate cannot choose to keep the baby after the delivery. This can cause a problem, especially in traditional surrogacy, as some states recognize a traditional surrogate as having a parental right to the baby as they are genetically linked or related. In this case, the parental rights have to be legally transferred after the baby has been delivered. This is the reason that traditional surrogacy is becoming increasingly unpopular. 

The surrogate also does not usually have the right to make choices about the pregnancy termination without the consent of the intended parents. There have been notable cases of conflict between the intended parents who wish to terminate a pregnancy, usually due to the ill health of the embryo and the surrogates who wish to carry to term. Conflicts like that can become extremely upsetting and damaging for both parties, which is why it is crucial to determine in the surrogacy agreement what will happen in the case that the embryo is unhealthy or not developing properly. The surrogates and the intended parents should always ensure that their views about termination and selective termination are aligned from the beginning. This will ensure that the rights of the surrogate mothers in Canada are met.