Legal Considerations of Surrogacy Part I: Why do I need a lawyer and a Surrogacy Agreement?

Surrogacy is a crucial family planning option, but it can be an emotional process.

Intended parents have typically undergone a long and emotional journey to get to the point of deciding they wish to consider surrogacy and few things are more important to people than their children. Therefore, when things go wrong, the consequences can be devastating for everyone involved. This is especially true because in Canada, where surrogacy for profit is illegal, the intended parents and the surrogate are often emotionally connected to each other. Therefore, intended parents and surrogates frequently have questions surrounding their legal rights and the surrogacy process itself.

Lawyers play a pivotal role for parties engaging in surrogacy by providing services such as: drafting a Surrogacy Agreement, information about the legal framework in Canada and establishing parentage for the intended parents.

This is the first of a series of articles which will consider some of the key legal questions related to surrogacy. In our first article, we address the question, do you need a lawyer and a Surrogacy Agreement?

As lawyers, we recommend drafting a Surrogacy Agreement with the assistance of legal counsel. However, this adds additional costs to what is already usually an expensive process, so some people may wonder whether they really need a lawyer and a Surrogacy Agreement.

Fertility clinics require intended parents and surrogates to have a written Surrogacy Agreement drafted by a lawyer, even though it is not a technical requirement under Alberta or federal law. The issue is whether the terms of that agreement, as each party understands them, are actually enforceable.

Involving a lawyer to draft a Surrogacy Agreement is critical for this. For example, in many instances, especially those concerning the bodily autonomy of a surrogate, the contract is likely not enforceable. However, a lawyer’s assistance provides more than just allowing you to tick off a box on the fertility clinic’s checklist or an attempt to create a legally binding contract. A lawyer familiar with the law related to surrogacy can guide valuable discussions and ask important questions for the parties to consider. Surrogacy is unique in the sense that the intended parent(s) and their surrogate are each on an independent, but parallel journey. The lawyer’s role is to assist the parties to come to mutual understandings of each other’s intentions and expectations throughout the process and to help the parties avoid disputes during their surrogacy journey.

Lawyers also provide invaluable information to the parties regarding the legal framework surrounding surrogacy. This is important because surrogacy is highly regulated in Canada. In Canada, surrogacy is based on an altruistic model. This means intended parents cannot provide, and surrogates cannot accept, any form of compensation (including gifts, services, property, cash, etc. ) for acting as a surrogate. In fact, the Assisted Human Reproduction Act, criminalizes any form of profit relating to surrogacy. However, a surrogate can be reimbursed for certain out-of-pocket expenses required due to the pregnancy. But again, there are rules surrounding the reimbursement of expenses.

Additionally, and arguably one of the most important aspects for intended parents, is to ensure that the intended parents are named on the child’s birth certificate. In Alberta, a court order is required to establish the intended parents as the legal parents of the child. Lawyers assist in drafting court documents, obtaining the required consent from the surrogate after birth, court filing and ultimately, obtaining the court order which will allow the intended parents to be named on the child’s birth certificate.

The surrogacy journey can be a remarkable and joyful experience for both intended parents and surrogates, especially when the parties have a fulsome understanding with regard to each other’s expectations and intentions and the process itself.

Please look for my bi-weekly articles coming in May 2022: Part II: Legal Considerations for Intended Parents and Part III: Legal Considerations for Surrogates.

For more information on Surrogacy Agreements or the legal framework surrounding surrogacy in Canada please contact Broynn Rosser.