Understanding the Surrogacy Agreements in Canada 

Surrogacy is a form of fertility program where a woman known as the surrogate carries a baby to term on behalf of a person or a couple that is referred to as the intended parents. Surrogacy is a complex treatment that requires careful consideration and heavy planning before it can be done. It also requires counselling and consultation from professionals, medical fitness evaluations, as well as legal considerations to successfully carry it out. Understanding the surrogacy agreements in Canada helps the intended parents to meet the legal requirements for surrogacy. Compare with those of Cyprus or Georgia. In Canada, surrogacy is legal, but the surrogate is required to be at least 21 years of age, and they are prohibited from profiting from the surrogacy process.

There are two forms of surrogacy; the traditional form is where the woman uses her eggs and the sperm from the intended father to get pregnant. Additionally, there is gestational surrogacy, in which an embryo is created using sperm and egg from donors or intended parents, and transferred to the surrogate, who carries the child to term and gives birth.

Legal framework and rights in Canadian surrogacy 

In Canada, surrogacy is permitted as long as certain legal requirements are met to safeguard the interests of all parties concerned. The Assisted Human Reproduction Act governs surrogacy in Canada, ensuring that ethical practices are observed. The key points from the act are:

• Altruistic surrogacy: Canada only allows this type of surrogacy, which means the surrogate is only able to get reimbursed for the costs incurred in the process.
• Parental rights: In surrogacy cases, the province determines legal parentage. The intended parents must complete legal steps in order to be recognized as legal parents.
• Contracts and agreements: Surrogacy agreements should detail the arrangement, including the rights and responsibilities of each party. These agreements, while not enforceable as contracts, provide clarity and understanding.

Surrogacy Contracts

Before the surrogacy is carried out in Canada, the first step after the intended parents and the surrogate have reached a consensus is for them to enter into a surrogacy contract or agreement. This is a written and signed agreement that is usually drawn up by lawyers representing the intended parents and reviewed by the lawyer representing the surrogate. In summary, the contract will state that:

• The surrogate will be the birth mother of the child.
• The surrogate will hand the child over to the intended parents after birth.
• The intended parents are to become the legal parents when the child is born.

If there is no surrogacy contract or agreement before the child is born, the birth mother is considered the child’s legal parent. This surrogacy contract is a common practice in many countries where surrogacy is practised, like Georgia. Without it, the parties will not understand their legal duties and responsibilities in the surrogacy process. For the intended parents to become the legal parents of the child, after the birth, the following must happen:

• No party must withdraw from the contract before the conception.
• The surrogate will issue a written contract after the birth of the child, surrendering the child to the intended parents. It is important to note that the surrogacy contract is not consent. However, it can be used to show intent in the eventuality of a dispute after the birth of the child.
• The child is given to the intended parents. 

All parties involved will be acknowledged as the child’s legal parents if the intended parents and surrogates have decided ahead of time that they will share parental responsibilities. The procedure for intended parents to have their parental rights acknowledged will vary depending on the province in which the child is born and whether the child shares a genetic makeup with the intended parents, the surrogate, or both. A fertility attorney will make sure that the intended parents are listed as the child’s legal parents in the jurisdiction in which the child was born, and that the birth is accurately registered. It is advised that the intended parents familiarize themselves with these regulations before selecting a surrogate since the legislation varies substantially between provinces.

What are the financial obligations of the intended parents to the surrogate in Canada?

Understanding the Surrogacy Agreements in Canada leads us to study the Assisted Human Reproduction Act of Canada. According to it, the surrogate is permitted to be reimbursed for all her reasonable expenses that are directly tied to the surrogacy process. This can include but is not limited to medications, lost wages incurred, legal fees, dependent and pet care, groceries, maternity outfits, transportation costs, health, disability or life insurance, counselling, childcare, communication costs and others. 

There will always be expenses that are not covered by the listed regulations. This is why the regulations have provision for a broad general category for products or services that have been recommended by a physician or a person who is authorized by the laws of a province to provide care, monitor, and provide health care to pregnant women. The inclusion of this general category provided an important flexibility to recognize that there are no laid down approaches to understanding the financial reimbursements in surrogacy, mainly because all surrogacies are different and unique. 

It is also important to be aware that the surrogate cannot be reimbursed from other sources apart from the intended parents. This means that the surrogate must certify that she has not received reimbursement from other sources, in order to receive her reimbursable expenses. Canada strictly practices altruistic surrogacy, so the surrogate should not commit double recovery. This means that she should not submit expenses for reimbursement to two sources that will cover the same expense, like her insurer and her intended parents. Another example is in the case of wage losses incurred. The surrogate cannot receive wage loss benefits from other sources like disability benefits or employment insurance and then still claim the full amount from the intended parents. The most important thing to remember is that the surrogate is not meant to profit from the surrogacy process.