Legal Considerations of Surrogacy Part III: Legal Considerations for Surrogates

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 third in a series of articles addressing the legal considerations of surrogacy. It will consider three common legal questions surrogate mothers have related to surrogacy.

As discussed in Part I and Part II of this series, surrogacy in Canada is based on an altruistic model and surrogacy for profit is illegal. However, surrogate mothers can be reimbursed for certain out-of-pocket expenses required due to the pregnancy. Given that surrogates in Canada act altruistically, the idea is that the surrogate should never be personally responsible for expenses that result from the pregnancy.

Many surrogates have questions surrounding reimbursement. Reimbursement of expenses is strictly regulated in Canada and surrogates often wonder how and to what amount they may be reimbursed for pregnancy related expenses. The Reimbursement Related to Assisted Human Reproduction Regulations (“the Regulations”) set out the types of expenditures that are eligible for reimbursement, but there is no limit on the amount of expenditures that may be reimbursed. The types of eligible expenditures include, but are not limited to, care for dependents and pets, legal services, travel expenditures, maternity clothes, prenatal exercise classes, and various health, disability, travel or life insurance. Really, it is anything that is required as result of the pregnancy.

The Regulations also provide that the surrogate must produce a receipt for every expenditure as well as a declaration which sets out some additional information regarding the expense, failing which the surrogate is not permitted to be reimbursed. Some product or service expenditures also require a medical note from a physician recommending the product or service to be eligible for reimbursement.

Importantly, reimbursement for wage loss is also permitted under the Regulations, but the surrogate must provide a written medical certificate from a qualified physician providing that continuing work may pose a risk to the surrogate’s health or that of the baby.

Another question that is often asked by surrogates, especially where the surrogate and intended parents are friends or family, is why all parties need independent legal advice regarding the surrogacy agreement. Firstly, it is typically required to obtain the court order to grant parentage to the intended parents. Although it is not a statutory requirement in Alberta as in some other Canadian provinces, it is a best practice. This is because the interests of the surrogate and the intended parents are naturally conflicting. It is important that the surrogate have her own lawyer to explain her rights and obligations under the agreement or to advocate on the surrogate’s behalf where the surrogate may not be comfortable with some of the terms of the agreement. For example, the types of pre-natal testing or procedures the surrogate is willing to undergo and to ensure that the agreement clearly sets out that the surrogate, and her spouse or partner, if any, are not intended to have any financial or parental obligations towards a child borne via surrogacy.

Lastly, a surrogate may be curious about confidentiality obligations or restrictions, including posting on social media about her surrogacy journey. Research suggests that surrogates are often described as non-conforming extroverts and it is not uncommon for surrogates to want to share their journey publicly with friends and family or to gain support from other surrogates through online groups or forums. Moreover, pregnancy is not something that can be easily hidden given the physical and lifestyle changes which accompany pregnancy.

Comparatively, intended parents may have a variety of reasons why they are not comfortable publicly sharing, on social media or otherwise, that they are the intended parents for some or all of the surrogate’s pregnancy. Sometimes it is as simple as the parties agreeing that the surrogate not make public posts and tag the intended parents personally, or for the surrogate to refrain from discussing the surrogacy until a certain point in the pregnancy, such as after the first trimester. A well drafted surrogacy agreement should cover any confidentiality restrictions or obligations including the use of social media.

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

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