Despite what you might have heard from co-workers, aunts and taxi drivers, surrogacy is NOT illegal in Canada. In contrast to some of the more progressive jurisdictions, in Ontario you cannot pay someone to conceive and/or carry a child for you, but you can reimburse that person for her out of pocket expenses. As long as you keep the right attitude and proceed in a clever way, surrogacy can be fun for the whole family!

Although immensely rewarding in the end, planning a family through assisted human reproduction can be an undertaking of epic proportions that will test your resolve and challenge you emotionally and financially. In order to avoid additional frustrations by the hands of our well meaning but overwhelmingly caring government officials, get to know the basics of the surrogacy law, and when in doubt, check with a lawyer.

The Assisted Human Reproduction Act, proclaimed, in part, in April 2004, is a young piece of legislation that has not yet been adequately tested in courts. Nevertheless, just because we have not yet seen prosecutions or many challenges to this law, it does not mean that it does not have teeth. If you plan carefully and abide by the rules set out in the Act, you surrogacy should not land you in hot water. Although Canadians are free to give and to receive eggs and sperm and to reimburse a surrogate for some of the expenses associated with the process, please leave your checkbook at home. You should also not try to use gifts and payments of the expenses of the kind person who is carrying your child as a way to mask what are in reality payments for the surrogacy services. We are still waiting for further clarifications on what, in the government’s opinion, falls into the category of acceptable expenses.

Sperm and egg donations are not illegal in Canada, but do not reach out for cups and turkey basters quite yet. The exchange of reproductive genetic materials is strictly regulated, and before you go window-shopping through the genetic bazaar, consult with a legal professional, as you may face draconian penalties if you run afoul of the rules. The law does not prevent someone from donating his or her genetic material for altruistic purposes. Reimbursement of expenses incurred in the course of the donation is also permitted, but section 7 of the Act prohibits the selling or buying of gametes from a sperm donor or an ovum donor or an embryo donor. So, next year, when your best friend asks you what you would like for Christmas, you will be ready to tell him or her, and hope that they are really in the spirit of giving.

You have looked everywhere and you have finally found a perfect surrogate. Now you have a choice to make. There are two difference kinds of surrogacy arrangements – gestational surrogacy or traditional surrogacy?

A gestational surrogate carries a child to whom she is genetically unrelated. In some situations, only one of the intended parents may be genetically related to the child. Picture it: You have used your own egg and you know that the child will have half of your chromosomes. The other half will come from a sperm donor, who you may or may not know. Through the magic of family law in Ontario, you and your partner, rather than the surrogate and the sperm donor will be recognized as the child’s parents, and both of your names will appear on the birth certificate. This is called declaration of parentage.

A traditional surrogate is the child’s genetic mother and birth mother, and enters into pregnancy with the intention of relinquishing custody once the baby is born. In any surrogacy arrangement, you need to enter into a contract and go through the declaration of parentage process once the child is born. Although not extensively tested for enforceability in Canadian jurisdictions, contracts setting out everyone’s legal rights and obligations are an essential step. At the very least, surrogacy contract is proof of intent, and as such, the agreement needs to be executed by all parties before an embryo is transferred to the surrogate. Furthermore, make sure that the egg donor receives independent legal advice, even if she says that “it is OK” and that she knows what she is doing. Without independent legal advice, your agreement may be vulnerable in the future on the basis that a surrogate gave up her rights without knowing what she was giving up.

I know that this sounds complicated, but there is no need to fear. Really. As long as you are stable, capable and loving prospective parents, an Ontario court should have no problem granting your request and making you the only parents that the child will ever know. If you use a surrogate in Ontario, you will most likely not need to adopt the child. Ontario jurisprudence presumes that the woman that gives birth to the child is the mother. The Family Law Rules and Child and Family Services Act outline a process by which, with help of DNA evidence and sworn affidavits from all parties, an Ontario solicitor can ask a court that the intended parents be declared as the baby’s real parents. Once again, a surrogate needs to have independent legal advice in order to fully understand what she is signing or swearing to. This requirement drives up the cost of the process, but is absolutely vital, considering that a single lawyer is conflicted out of representing both sides with opposing interests in the matter.

In December 2010, the Supreme Court of Canada upheld Quebec’s challenge to this legislation by giving to the provinces the power to regulate fertility clinics. While the immediate effects of this decision remain unclear, its impact on the issue of commercial surrogacy is limited, as this ruling does not seem to interfere with Ottawa’s jurisdiction to ban the paying of fees for egg or sperm donation or surrogacy services.

Ivan Steele, B.A., M.A., LL.B.
Ivan Steele Law Office
33 Wood Street, Suite 1709, Toronto, Ontario M4Y 2P8, Canada
Phone (647) 955-1898
Fax (647) 344-4493
Email: ivansteele@ivansteelelaw.com