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 regulations, Reimbursement Related to Assisted Human Reproduction Regulations, that govern what can be reimbursed to surrogates or donors. These set out a process to claim reimbursements. Some reimbursements require a medical referral from doctor, such as for lost wages for the surrogate. A Declaration Form and receipts are required. Health Canada has developed a Guidance Document on the Reimbursement Regulations that describes the rules and includes same Declaration Forms to make reimbursement claims
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. The Intended Parents and the surrogate cannot be represented by the same lawyer. The other party to the agreement will need to get independent legal advice about the agreement.
Your lawyer will gather information from you and discuss a number of relevant issues that you may not have thought about. They will then draft the agreement, and walk through it in detail with you. Once you are happy with the agreement, the agreement will be provided to the other party and their lawyer. That lawyer who will walk the other party through the agreement, and make suggestions for changes, if needed. Once the agreement meets everyone’s needs, the lawyers can facilitate sign-off of the agreement. The lawyer will then send the fertility clinic a “clearance letter” confirming there is a legal agreement in place so the clinic can proceed.
The Intended Parent’s lawyer can also assist the parties with the Birth Registration process after birth if required. In BC the process in simplified and streamlined. Special forms are required from Vital Statistics Agency and the Intended Parents and surrogate must both swear declarations. No court application is required in BC. However, if the child is born outside of BC, a court order will likely be required after the birth.
Complications
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.
