The Role of Lawyers in Canadian Surrogacy

The role of lawyers in Canadian surrogacy cannot be overemphasized as they play a pivotal role in the interpretation of Canadian laws to all parties involved in the surrogacy process. Surrogacy is a complex fertility treatment that requires a lot of planning and preparation before it can be done. After delivery, towards the end of the process, the baby is handed over to the intended parents who then assume parenthood and take responsibility for it. A lot of steps are taken also to ensure that the treatment has a successful outcome. These steps come in the form of extensive counselling for both the surrogate and the intended parents. There are also medical, psychological and mental evaluations of both parties to ensure their readiness for the tasking surrogacy journey.

Types of surrogacy 

Two main forms of surrogacy are globally recognized; they are the traditional and the gestational forms of surrogacy. The traditional form of surrogacy involves the artificial insemination of the surrogate with the sperm from the intended father. This means that the surrogate uses her eggs to get pregnant. In the gestational form of surrogacy, the egg and the sperm used are obtained from either the intended parents or from donors. They are then combined in vitro in the lab to create an embryo. After being grown for a few days, the embryo is placed inside the surrogate’s uterus, where it grows until the baby is born.

The main difference between the two forms of surrogacy is the fact that there is a genetic link or relationship between the surrogate and the baby in traditional surrogacy which is not present in gestational surrogacy, this is due to the different ways that the embryo was created. The gestational form of surrogacy is also more complex and expensive than the traditional form.

Legality of surrogacy

Surrogacy is a very controversial topic with different regulations and laws guiding it in different countries. That is why the role of lawyers in Canadian surrogacy is important for proper legal advice. The treatment is so controversial that in some countries there are no uniform laws guiding it, different states have different laws for it. Some countries have very strict regulations for the treatment while others have no specific regulation that addresses it. 

For example, while Russia has very strict laws that need to be followed to the latter for surrogacy to be legal, Kenya does not have any specific regulations for it. In Georgia, only their citizens can access surrogacy or any fertility intervention treatments like egg donation or IVF, foreigners are banned completely. Other countries ban one form of surrogacy while allowing the other. In Canada, traditional or altruistic surrogacy is legal, but commercial surrogacy is not. This brings us to the importance of lawyers in the surrogacy process in Canada.

The legal landscape of surrogacy in Canada

Only altruistic surrogacy is legal in Canada. The Assisted Human Reproductive Act prohibits the provision or the acceptance of any consideration to a woman for the service of surrogacy. This means that it is illegal to pay a surrogate for her services. However, it is legal to reimburse her for any expense that she has made that is directly linked to the surrogacy treatments. This includes medical bills, transportation costs and the like. Other restrictions that guide surrogacy in Canada include:

• The involved parties will not accept any consideration for arranging for the services of a surrogate mother, offer to make such arrangements 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 advise or persuade a woman to become a surrogate or perform any medical procedure to help a woman become a surrogate, especially if they know that the woman is below 21

These regulations summarise that, in Canada, the following are considered illegal:

• Paying a surrogate for her services
• Offering to pay or paying another person 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 procedure

The guiding principle of Canadian regulations, which states that it is strictly forbidden for health and ethical reasons to exploit the reproductive capacities of men, women, and children for commercial gain, is the source of these prohibitions and regulations.

The role of lawyers in surrogacy 

Surrogacy lawyers are very important in helping intended parents navigate the complex Canadian fertility laws. The Assisted Human Reproductive Act of Canada not only governs surrogacy, it also regulates how the meeting between the surrogate and the intended parents is meant to occur. This is why acquiring the service of a surrogacy or family lawyer should be done even before starting any process of surrogacy. Also, the surrogate is meant to have her independent legal representation before agreeing to any surrogacy terms. The law firm that represents the intended parent cannot represent the surrogate as well. 

Reputable fertility or surrogacy agencies refuse to conduct artificial insemination or embryo transfer on a surrogate without first making sure that they have obtained independent legal advice and understand the process that they are about to go through. The lawyers for the two parties are present in the meeting where the agreements are made. The agreements set out the legal obligation and rights of each of the parties and the terms guiding the surrogacy treatment. 

Once the intended parents have reached an agreement with the surrogate, the surrogacy agreement or contract is then drawn up. The surrogacy lawyer is also crucial after the delivery of the baby. They ensure that the intended parents are declared the legal parents of the child and not the surrogate or her partner, if any. The lawyers ensure that all the legal steps are adhered to and make the process facilitated and smoother. They also deal with any issue that may arise, like citizenship issues, legal parentage issues or passport issues.