If you are
- A surrogate who will help another person or couple have a child
- A heterosexual couple for whom carrying a pregnancy is not possible
- A gay couple
- A trans woman and man couple
- Considering surrogacy
This section is for you.
What is surrogacy?
In surrogacy, a woman – the surrogate mother, also often called a gestational carrier – carries a fetus in pregnancy and gives birth to a child for other people – the intended parent(s) – who will be the child’s parent(s) and raise the child. For the intended parents to be legal parents in BC, a written surrogacy agreement must be made before conception.
Genetically, the origins of the embryo may vary:
- The sperm and egg may be those of the intended parents
- The sperm may come from one of the intended parents, and the egg from a donor
- The egg may come from one of the intended parents, and the sperm from a donor
- Both egg and sperm may come from donors, or a donated embryo may be used
The key to surrogacy in BC is that the written legal arrangement must be made before conception. If an arrangement is made after a child has been conceived, then it is not surrogacy; instead, an adoption must be done after birth.
People often talk about two different kinds of surrogacy: gestational surrogacy where the surrogate does not have a genetic connection to the child, and traditional surrogacy where the surrogate’s own eggs are used for conception (keeping in mind that the conception cannot occur by sexual intercourse or the assisted reproduction rules in BC don’t apply).
In Canada, as a result of the federal Assisted Human Reproduction Act, a surrogate must be at least 21 years old, and it is illegal to pay a surrogate to be a surrogate (for example, by agreeing on an amount of money for her role), however it is legal to reimburse her for the expenses relating to the pregnancy. There are no specific regulations about expenses at the moment, however, Health Canada has some commentary. The lawyer drawing up the surrogacy agreement is very careful about the expenses sections of the agreement.
BC’s Family Law Act essentially contains a two step process – one step that happens before conception and another step that happens after birth.
STEP ONE – before conception: First, the potential surrogate and intended parent(s) must enter into a written agreement prior to conception:
- for the surrogate to be the birth mother,
- for the surrogate to surrender the child at birth and not be a parent, and
- for the intended parent(s) to become the parent(s) when the child is born.
STEP TWO – after birth: When the child is born, the intended parent(s) will be the parent(s) if:
- No one withdraws from the agreement prior to conception,
- When the child is born, the surrogate gives written consent to surrender the child to the intended parent(s) (surrogacy agreement is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born), and
- The intended parent(s) take the child into their care.
That being said, it is possible for everyone to agree that the surrogate will also be a parent. If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born. This creates the potential for a child to have more than 2 legal parents – in fact, because a sperm donor and egg donor can also make an agreement before conception to be parents – it is theoretically possible for a child in BC to have up to 5 legal parents.
How Do We Make A Surrogacy Agreement?
Contact one of the lawyers associated with Fertility Law BC. That lawyer will send you a questionnaire about who the surrogate will be, any donors involved, and who the parents will be. The lawyer will likely also let you know some questions to talk over with the other person or people involved, because it is cheaper for you if you know those answers before embarking on drafting an agreement.
You will bring the questionnaire to a meeting with the lawyer. The lawyer will explain the process, including how to register the birth of the baby. Then they will draft up the agreement for you.
The other party to the agreement will need to get independent legal advice about the agreement.
The laws about who is a parent vary across Canada. So one of the things you will want to be sure about s that the baby will be born in BC; or make provisions for what happens if the baby is born elsewhere.