Surrogacy in Canada

Surrogacy in Canada has become gradually a common option for straight, same sex couples and single individuals looking to start their families, this is due to the increase of infertility issues and a growing visibility of non-traditional families.

Canadian society continues being more and more comfortable with non-traditional families and alternative fertility processes. The changes in the society are leading to the development of more comprehensive legislation about surrogacy.

 

Is Surrogacy in Canada legal?

Contrary to popular belief, surrogacy agreements are legal in Canada; what is illegal is paying a woman to be your surrogate (also known as “commercial surrogacy”). This means that if a woman decides to become a surrogate mother in Canada, it must be an altruistic act and with the purpose of obtaining revenue. The Assisted Human Reproduction Act (AHR Act) prohibits paying a gestational carrier for her services; however it is legal to reimburse a surrogate for her reasonable expenses as a result of the pregnancy or surrogacy process.

If you are going to pursue surrogacy in Canada, you need to know that the Canadian regulation related to third party reproduction can be split into two groups:

  • The Assisted Human Reproduction Act (AHR Act), which gives a legislative framework at the federal level, and
  • The provincial law which can be based on legislation or case law. Provincial regulation is used to establish parentage of any child born via surrogacy.
how surrogacy works in canada

Surrogacy in Canada: Regulation by Province

Pursuing surrogacy in Canada can be a challenging process because each Province has its own regulation.

Most surrogacy processes take place in Ontario, Alberta and British Columbia, but there are surrogacy births in other provinces. Here is a brief summary to get you started.

  1. Surrogacy in British Columbia: Immediate Registration, no Declaration of Parentage is needed.
  2. Surrogacy in Alberta: Declaration of Parentage, the genetic link to the child is important.
  3. Surrogacy in Ontario: Statuary Declaration (Declaration of parentage optional)
  4. Quebec: It´s not a surrogacy destination, only adoption
  5. Manitoba, Saskatchewan, Nova Scotia and New Brunswick, surrogacy is less common in those provinces and there are differences in the process and legal requirements (length of time or requirement for one or both Intended Parents to be genetically related to the baby).
Surrogacy Canada
Surrogacy in Canada

Surrogacy process from a legal point of view

There are two main legal elements to the surrogacy process:  the contract and the declaration of parentage.

The contract between a surrogate and the intended parents guides the entire surrogacy process, clearly defining each party’s rights, roles and responsibilities before, during and after the pregnancy.

If the surrogacy contract is done correctly, it can help limit disputes and misunderstandings, at the same time it protects everyone involved in the surrogacy process: the intended parents, the surrogate mother and the baby.

The declaration of Parentage is the part of the process that ensures the intended parents are legally recognized as the parents of the child.

In Canada, each Province has its own laws regarding how a child’s birth is registered, and this includes the situation in which a gestational carrier (surrogate) is the birth mother. British Columbia and Ontario are the most surrogacy friendly jurisdictions on the opposite side Quebec with a legislation that considers surrogacy agreements to be null and void.

Generally speaking, within Canada, the woman who gives birth is presumed to be the mother.  If the birth mother has a male spouse, he will be presumed to be the father.  In a surrogacy situation, the surrogate is presumed to be the child’s mother because she is the one who gives birth, and if the surrogate has a male spouse, he is presumed to be the father.

These presumptions can be rebutted in a Court application, so intendent parents will need to legally overturn those presumptions by applying for a Declaration of Parentage from the courts. There are significant differences among the Provinces in Canada so it is important that you seek the assistance of a lawyer who is experienced with surrogacy laws to ensure this important step is done correctly.

After the child is born, DNA test must be done to prove that he or she has no genetic link to the gestational carrier. This evidence is presented to a judge, along with copies of the surrogate or donor contracts to prove that you were always intended to be the child’s parents.

As soon the intended parents receive the Declaration of Parentage in Canada, they can take this court order to the General Registry in the province in which the child is born and obtain a birth certificate with the parents’ names and apply for the child’s passport.

The Declaration of Parentage does not require the intended parents to adopt the child the gestational carrier (surrogate mother) gives birth to and it is very important to ensure the correct people are named as the child’s parents on the child’s birth registration documents.

If you are non-Canadian, and you are considering using a Canadian surrogate, not only it´s important to keep in mind the birth registration laws of the Province in which the child will be born, but also you must consider  the citizenship and parentage laws of your home country.

This surrogacy regulation can actually be quite complicated and is constantly evolving and changing. Therefore, for those who intend to use this route in order to become parents, it is important to understand exactly how the province of residence deals with such laws.