Legal Considerations of Surrogacy Part II: Legal Considerations for Intended Parents

Surrogacy is a crucial family planning option. Intended parents and surrogates often have (or should have) questions surrounding their legal rights and the surrogacy process itself.

This is the second in a series of articles addressing the legal considerations of surrogacy. It will consider three common legal questions intended parents have related to surrogacy.

As discussed in Part I of this series, in Alberta, a court order is required to establish the intended parents as the legal parents of the child. One frequently asked question by intended parents is “does the surrogate’s name appear on the birth certificate?” In Alberta, the answer is – no – or at least, not necessarily. The surrogate will automatically be recognized as the “birth” mother in Alberta. But, once the parties submit a Declaration of Parentage (which includes the required consent of the surrogate) and it is approved by the court, the intended parents file these documents with Alberta Vital Statistics. Vital Statistics then issues a birth certificate listing only the intended parents as parents of the child born via surrogacy and the initial birth registration listing  the surrogate is destroyed. The process in Alberta is quick and typically the intended parents can be listed on the birth certificate in about two weeks.

Alternatively, in some countries, it may not be possible to get two men recognized on a birth certificate. Therefore, in instances of same-sex male intended parents who live internationally, it is possible to keep the surrogate on the birth certificate and list one of the male intended parents as the other parent. This will allow the birth certificate to be registered in the intended parents’ home country.

Another question that may arise during the surrogacy process is whether the intended parents have to be genetically related to the child born via surrogacy. While strictly speaking, the answer is no, from a practical perspective it is preferable that at least one of the intended parents have a genetic link. This is because in Alberta, the law does require a genetic link to at least one of the intended parents in order to use the expedited court process to declare parentage.

If the intended parents are using a donated embryo such that neither of them have a genetic link to the child, it is recommended that the intended parents do not use a surrogate who will be giving birth in Alberta. This is because the intended parents would have to go through the much more lengthy, invasive and expensive adoption process to be recognized as legal parents of the child. It may therefore be preferable to use a surrogate in another jurisdiction.

Finally, intended parents often want to know how they can thank the surrogate. Pregnancy is quite physically and emotionally taxing. This is often compounded in the context of surrogacy given the additional psychological and physical testing as well as other medical and legal requirements associated with surrogacy. Often, intended parents are so grateful they would like to give the surrogate gifts. For example, offer to pay her mortgage, buy her a car, etc. As set out in Part I of this series, surrogacy in Canada is altruistic and a surrogate cannot be paid to act as a surrogate – this is illegal in Canada and punishable by a fine not exceeding $500,000 or imprisonment for up to 10 years – although, there is only one prosecution under the Assisted Human Reproduction Act. However, some small personal gifts such as flowers, baked goods, fruit baskets, or gift certificates are considered acceptable and are common practice. Otherwise, only certain expenses can be reimbursed which must be in accordance with the regulations. Reimbursable expenses will be discussed in more detail in Part III: Legal Considerations for Surrogates.

Given that surrogacy is highly regulated under Canadian law, lawyers play a critical role as they assist parties by providing services such as: drafting a Surrogacy Agreement, information about the legal framework in Canada, and establishing parentage for the intended parents.  

Please look for my final article coming in May 2022: Part III: Legal Considerations for Surrogates.  

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