Third-party reproduction, or surrogacy, is a reliable alternative for those who need assistance to create a family. If you are considering surrogacy, it’s essential to know the legal aspects of this option. Here are the top five questions about surrogacy and the law in Canada that we hear from our clients.
1 – Is surrogacy legal in Canada?
Surrogacy is legal in Canada, however paying a surrogate for her services is illegal. The surrogate may be reimbursed for out-of-pocket expenses such as lost wages, gas, maternity clothes, legal fees, and medical care not covered by insurance. These expenses must be reasonable and related to the surrogacy. For example, gifting a new car to the surrogate would not be reasonable, but reimbursing the surrogate for cab fare or gas to and from the doctor’s visit would be.
The prohibition of payment for surrogacy falls under the Criminal Code of Canada and is punishable by imprisonment and/or fines. The surrogate must provide her services gratuitously, and this should be documented and evidenced by a surrogacy agreement.
2 – What do I need to know about the law as a surrogate?
While surrogacy is legal in Canada based on federal legislation, the legal status of a parent is governed by provincial laws. This means each province has its own laws on how a person becomes the legal parent of a child and is listed as the parent on a child’s birth certificate.
In Manitoba, upon the birth of a child, the woman who gave birth must be listed as the mother, and if married, her husband must be listed as the father, even in the absence of any genetic link. Therefore, as a surrogate, you must register your name on the birth registration as the mother, and if you are married, you must list your husband as the father.
After the birth is registered with Vital Statistics of Manitoba, the intended parents must make a court application to remove your status and name as the legal parent.
Ensuring the above is critical because there are laws binding parents to financially support their children. As long as you remain listed as the legal parent on the birth certificate, you are exposed to a claim for the financial support of the child. The termination of your legal status to the child is especially important in the case of traditional surrogacy (where the surrogate used her own eggs), resulting in a genetic link.
The care and financial responsibilities of the child should be outlined in a surrogacy agreement, including the reimbursement of expenses.
3 – What do I need to know about the law as the intended parent?
In addition to the information above, as the intended parent, you need to understand that as long as the surrogate (and her husband, if applicable) remain listed as the parents on the child’s birth registration, you have no legal status as the child’s parents, regardless of your genetic link to the child. This includes having physical custody and care of the child and decision making in the care of the child.
A court application to terminate the legal status of the surrogate may take up to several months. During this time, the surrogacy agreement will bind the surrogate to turn over physical custody and decision making for the child to you immediately. The agreement also binds you, as the intended parent, to all financial responsibility for the child and releases the surrogate of all financial responsibility.
4 – What is a surrogacy agreement, and why do I need one?
A surrogacy agreement is a contract between the intended parents and the surrogate (and her husband, if applicable). A surrogacy agreement outlines the intentions, expectations, and responsibilities of all the parties.
All parties need to understand that fertility law is still emerging in Manitoba, and the courts always have final jurisdiction when it comes to the well-being of the child. The court does not have to follow what the parties agree to if it finds that the child’s health is at risk. However, in determining the well-being of a child, the court will review the intentions of the parties, and the surrogacy agreement will be very persuasive evidence in that regard.
For all the above reasons, a surrogacy agreement is critical. It’s been my experience working with both intended parents and surrogates that merely reviewing the surrogacy agreement helps open discussions that the parties had not thought about. This includes specifics about what is a reimbursable expense, travel restrictions, health risks, life insurance, pre-natal and pregnancy decisions. For some parties, these are simple discussions, and for others, it may involve assessing their core values. An experienced lawyer in this area of law will be able to help you navigate these difficult and sensitive conversations.
5 – How much are the legal fees for surrogacy?
You will need a lawyer to get involved in two stages along your surrogacy journey.
The first stage is for the preparation of a surrogacy agreement. The cost for the preparation of a surrogacy agreement will depend on your specific needs. As stated above, some parties readily agree on the terms they define in the agreement. For others, it requires more discussions and generating options to address varying concerns and needs.
Minimally, the intended parents should budget at least $1,500 to $2,500 for a surrogacy agreement. The surrogate will also require independent legal advice for reviewing the agreement with her. She can expect the cost for that at $800 to $1,500, which the intended parents usually cover.
The second stage begins after the birth of the child, where the lawyer will file an application to have the court declare the intended parents as the legal parents of the child. This stage involves preparing and filing court documents and in some cases, court attendance. For this stage, the intended parents can expect to pay a minimum of $2,500 to $3,500, and the independent legal advice for the surrogate will cost about $1,000 to $1,500.
Please note that these are very general estimates. In cases where complications emerge that require more work, costs can exceed these average ranges.
While is it important to budget for legal fees, it is equally important to have the right lawyer prepare your surrogacy agreement and obtain legal status as parents for the intended parents.
As a surrogate, you want to help the intended parents build their family without being at risk of having to financially support this child.
As the intended parents, you want to ensure that you will be the legal parents to the child without eroding your gratitude to the surrogate for her self-less and gratuitous act.
By Chau Tran
It is my privilege to assist both surrogates and intended parents in their family creation journey. Please contact me if you have any questions about fertility law in Manitoba.