SURROGACY CONTRACTS / AGREEMENTS
Surrogacy is legal 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 may reimburse that person for some of her out of pocket expenses. Altruistic sperm and egg donations are not illegal in Canada either but the exchange of reproductive genetic materials is strictly regulated. While reimbursement of expenses incurred in the course of the donation is permitted, selling or buying of gametes from a sperm donor or an ovum donor or an embryo donor is prohibited.
There are two difference kinds of surrogacy agreements – those dealing with gestational surrogacy and 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 intent 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 essential. 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.