Surrogacy in Canada: What Intended Parents and Surrogate Mothers need to know about the process and its legalities

With a rise in infertility problems and non-traditional families, many single people and same-sex couples in Canada who want to start a family have turned to surrogacy as their option.

There are many people who don’t know that the option is even legal in Canada. In fact, they’re under the assumption that they’ll need to set up a surrogacy arrangement in another country.  According to Canadian legislation, altruistic surrogacy is legal. What is altruistic surrogacy? By definition it means,

  • Surrogate mothers are ineligible for payments beyond basic expenses.
  • Agencies are not permitted to match future parents with surrogates.
  • Commercial services that support the surrogate or parents are not permitted.

 

surrogacy in canada

Although surrogacy in Canada is a possibility, it can take months and years to find a competent surrogate and be successful.

Surrogacy in Canada is not like surrogacy programs in countries such as the U.S. The prospective parents are the ones doing the research – something a hired surrogacy consultant would do. However, there are some advantages to it.

The laws that govern surrogacy in Canada are implemented in different ways in different provinces, but the federal law recognizes that surrogacy contracts are possible.  It also recognizes that married and co-habitational couples of any sexuality as well as single men and woman can sign a gestational carrier agreement in the country.

There is one issue that must be considered when dealing with surrogacy in Canada.

The Canadian Federal Act (AHRA) permits a surrogate mother to demand custody of a child even if there is a contract. This means a surrogate mother retains all parental rights to the baby even after birth.  Therefore, intended parents looking at the possibility of surrogacy in Canada, should be ready for a long battle in the parental transfer or adoption process.

A baby born in Canada is granted a Canadian citizenship, which means new parents will need a Canadian passport for their newborn to go home with the child.

Canada’s healthcare service is extended to the surrogate and delivery. Should complications arise in the delivery, the costs of medical treatments are addressed. But, Canada’s social security does not apply to children of foreign citizens, despite the fact that the baby is considered a Canadian national. Thus, any NICU care costs are the intended parents’ responsibility.

Surrogacy in Canada: Is it really legal?

While surrogacy in Canada arrangements are legal between the two parties, the law doesn’t have to fully enforce it. If the surrogate mother decides to change her mind and keep the baby, she’s recognized, by law, to keep the child… regardless of a contract or not.

If intended parents want to sue the surrogate for custody, the courts would acknowledge the contract’s intent and ask for DNA tests to prove the genetic parentage. At this time, there’s been no legal precedent on how the courts would address this issue. The hope is that a contract between the surrogate and intended parents would be enough to show the arrangement’s intent and a DNA test proves the true heritage of the newborn.

The agreement must be respectful of the territorial and provincial laws of where the intended parents and surrogate mother lives as well as the AHR act.

Parentage Declarations and Birth Registration

Each province in Canada has laws stipulated on how to register a child’s birth including when the birth mother is a surrogate. When it comes to the birth registration process, British Columbia and Ontario tend to be the most surrogate friendly provinces.

People who are contemplating a surrogacy arrangement, where the child is born needs to be factored in before a surrogacy in Canada contract is drawn up. There are two things non-Canadians who want to use a Canadian surrogate need to consider:

  • A Province’s birth registration laws where the child will be born.
  • Intended parents’ parentage and citizenship laws.

What’s the cost of a surrogacy process in Canada?

There is no known exact cost behind a surrogacy journey in Canada for two reasons:

1- Illegal to pay except for reasonable expenses

It’s illegal to pay a Canadian surrogate, although the intended parents can pay for reasonable expenses that occurred because of the surrogacy. While every situation is different, the intended parents are expected to pay the surrogate based on the circumstances she incurred. If the surrogate’s pregnancy is complicated and requires bed rest, the intended parents will be expected to pay more for her expenses.  If the surrogate mother lives a great distance from the IVF clinic, the intended parents are expected to pay for the travel expenses.

Surrogacy agreements give some certainty in the “relationship” when it comes to how much the intended parents are liable for legally in reimbursing the surrogate for her incurred expenses.

2- IVF isn’t perfect

It’s not uncommon for a surrogate to undergo several transfers, which raises the costs of the surrogacy in Canada. It’s important that intended parents know about the potential costs associated with the option – although surrogacy in Canada is far cheaper than the U.S. option.

Three steps to start your surrogacy process in Canada

If you’re interested in pursuing surrogacy in Canada, there are three things you need to do:

  1. Hire a local attorney specializing in these kinds of cases. An experienced attorney will handle the paperwork and legalities that relate to the surrogacy process.
  2. You can find an egg donor, surrogate mother or intended parents through various online communities or forums.
  3. Once the surrogate mother and intended parents matched, the intended parents can choose a reliable and dependable clinic near the location of their surrogate’s home.