A Guide to the Surrogacy Laws in Canada
In Canada, surrogacy is regulated under multiple provincial laws, the Criminal Code, and the Assisted Human Reproduction Act. The Criminal Code sets out the law around payment for surrogacy and the sale of children, whereas the provincial laws address the rights of donors and surrogates, some specific to fertility clinics. The Assisted Human Reproduction Act is federal legislation that came into force in 2011, which criminalizes certain human reproduction practices but doesn’t specifically address surrogacy. While the Assisted Human Reproduction Act uses the term "surrogate" in its definitions, it does not define what a surrogate is. Instead, the Criminal Code defines surrogacy agreements as:
(1) A person or persons may enter into a surrogacy agreement that provides that (a) the person or persons must pay or make a gift of any property to a surrogate, or to the surrogate’s personal representative, in consideration for each of the services agreed to be rendered by the surrogate; and (b) the surrogate shall surrender to the person or persons all parental rights in respect of any child born under the surrogacy agreement.
(2) An agreement entered into by a person for the purpose of making a child a parent other than the surrogate shall not be a valid surrogacy agreement.
(3) No person shall give or agree to give an amount of property or a gift of any property to any person other than a surrogate, or the surrogate’s personal representative, in consideration for the surrogate rendering any service under a surrogacy agreement.
(4) No person, other than a surrogate, shall pay or offer to pay a surrogate for rendering any service under a surrogacy agreement any amount in excess of an amount equal to reasonable expenses incurred by the surrogate only .
(5) For the purposes of this section, a reference to any value considered to be necessary to meet the needs of a child born under a surrogacy agreement includes a reference to, in the case where the surrogate is the mother of the child, (a) expenses incurred by the surrogate during her pregnancy, including (i) medical expenses, and (ii) expenses related to, or reasonably necessary in connection with, the birth of the child; and (b) expenses incurred by the surrogate in respect of the child after the child’s birth, including (i) expenses related to, or reasonably necessary in connection with, the care, education, maintenance and welfare of the child until the child reaches the age of majority, and (ii) expenses reasonably necessary in connection with establishing a medical and dental insurance plan for the child; but does not include (c) expenses incurred by the surrogate or the surrogate’s spouse or common-law partner in respect of a child other than the child born under the surrogacy agreement; (d) expenses incurred by the surrogate or the surrogate’s spouse or common-law partner in respect of a child born under a surrogacy agreement after the expiry of one year after the day on which the child is born; (e) expenses incurred in respect of the surrogate before the day that is two weeks after the day on which the surrogate provides to the person requesting surrogacy services all information required by regulations made under this Act to be provided; (f) expenses incurred in respect of the surrogate during the two-week period referred to in paragraph (e); (g) expenses incurred in respect of the surrogate and the child in excess of an amount equal to the value of the assistance of the person requesting surrogacy services in providing to the surrogate services in relation to the surrogate’s pregnancy; or (h) expenses incurred in respect of the surrogate in excess of the amount prescribed by regulations made under this Act.
In Canada, surrogacy agreements are legal, so long as they abide by the regulations set out in the Criminal Code.
The Fundamental Features of a Surrogacy Agreement
Generally, Canadian surrogacy agreements should contain the following:
Preamble. Parties to a surrogacy agreement must provide evidence of their understanding of and compliance with applicable laws. These parties are required to comply with the provisions of the Assisted Human Reproduction Act (AHRA).
Parties. Names and relevant information regarding all parties should be identified in the preamble, including the intended parents and surrogate.
Purpose. The reason for the surrogacy agreement is outlined. This provides some context for the ensuing terms of the surrogacy agreement.
Definitions. Specific terms should be clearly defined and include such concepts as "embryo", "egg donation", "surrogate mother", "sperm donation", "disclosure", etc.
Rights and obligations. Terms related to the rights and obligations of involved parties should be included. This includes disclosure of relevant information between the parties, insurance, responsibilities and historic medical disclosure.
Confidentiality. Parties can agree to the most preferable venue for address questions or concerns regarding use of confidential information.
Moral and religious issues. A clause covering the most significant moral and religious issues surrounding the surrogacy process may be included. These concerns could be discussed in relation to human dignity and the welfare of children, among others.
Expenses. The intended parents will cover the surrogate’s reasonable expenses incurred while facilitating the surrogacy, such as medical expenses, travel costs, and child care expenses.
Best medical practices. The surrogate must treat the child as her own, according to generally accepted best medical practices.
Contingent events. If an unusual or unforeseen event occurs after inception of the surrogacy process that one or more parties disagree with, a contingency plan will need to be in place.
Surrogate compensation. The surrogate is not entitled to compensation under law. However, the parties may provide her with compensation as a gesture of gratitude.
Termination. In the event that the surrogacy agreement is terminated, it should be possible to terminate the agreement without court involvement.
Legal Safeguards for the Surrogate and the Intended Parents
The legal protections available to surrogates and intended parents are essential components of any surrogacy agreement. As with any contract, the intentions to be garnered from an agreement can only go so far in a domestic relationship as evidencing serious intent as well as ultimately minimizing and/or eliminating conflicts down the line. In some cases, this may be enough, though in CC, supra, Justice Brown wrote:
Further evidence that a ‘surrogacy agreement’ is not a contract, as such, rested with the surrogate’s lack of ability to assign legal rights and obligations within her surrogate mothering role. The surrogate did not have ‘the right to dictate to other parties the exact manner in which she should be held and treated" while pregnant.
In any event, the stipulations and provisions of an agreement is often used in negotiations where a dispute or breach arises. These are important to both surrogates and intended parents as they provide a framework for fulfilling the terms and conditions of a surrogacy arrangement. Intended parents may also require a surrogate to relinquish her parental rights to her child. Where implementation is required, courts have recently held that a surrogate cannot change the terms of a contract "in view of the tension between the duties of a mother to respond to the best interests of her unborn child and to the terms of a contract she freely entered into with the emotional, if not financial, support of her family and friends".
While it is apparent that increasing legal protections are needed in Canada, less clear is how best to implement such a program. One suggestion is a pre-conception mediation where surrogate and intended parents negotiate terms and conditions with their lawyers present. The resulting agreement may then be reflected upon when a dispute arises. While this would avoid litigation and allow for easier access to a surrogate’s rights, it would likely not be for all participants.
It is clear that an intended mother does not have to physically breastfeed her child to be recognized as its mother unless the parties’ agreement states otherwise. And, it has been held that an intended mother’s "intention to take full care of, and dignity of parentage for, the child … was sufficient to override the surrogate’s intention, absent the mother’s lack of consent to the artificial insemination procedure that led to the birth".
As litigated cases continue to come forward in Canada, broad remedies under Canadian laws and support services should begin to emerge.
The Need for Legal Representation in Surrogacy Agreements
Given the importance of a surrogacy contract, and the necessity of it being done in accordance with Canadian law, it’s critical that a lawyer who understands surrogacy law in Canada review the surrogacy agreement and be involved in the preparation of it. A legal professional will ensure that the surrogacy agreement is drafted properly and protects the rights and interests of all parties. For intended parents, who are typically the individuals who proceed with a surrogacy arrangement, it is especially important to have a legal professional look into how the surrogacy contract interacts with Canadian adoption law, Canadian tax law, etc . Failure to do so can result in a legally enforceable contract that is not in line with Canadian law.
The surrogacy contract itself should also be signed in Canada in order to be enforceable in Canadian Courts. It is beneficial that the agreement be drafted in Canada and governed by Canadian law, so that the responsibility of preparing the contract doesn’t place undue burden on the Canadian surrogate.
How to Make Your Own Surrogacy Agreement Template
While creating your own surrogacy agreement template can be a daunting prospect, it is possible to put together one that contains all the necessary elements while also being clear and easy to understand. To get started, first refer to the articles of law that are applicable to your surrogacy agreement. This will give you a clear idea of what elements are required by law.
Next, make a list of the main responsibilities and rights of both the intended parents and the surrogate. You may choose to divide up the surrogacy agreement into headings, which will make it much easier to read. At this point, you might want to go over your template with a lawyer to make sure that it contains everything that is required under law and sufficiently protects both parties.
You may find a surrogacy agreement template using online services. Be aware that these templates may not be particularly comprehensive, and you will need to make sure your version leaves nothing out. Keep in mind that official agreements tend to have the following elements: After drafting an agreement, both the intended parents and the surrogate should each have their terms reviewed by a lawyer. This also gives each party the opportunity to raise any additional points they find necessary.
Surrogacy agreements don’t have to be similar to prenuptial agreements. They can be more flexible because it is often in the mutual interest of both parties to make adjustments mid-process.
Common Trouble Areas and How to Avoid Them
One of the main challenges that has been noted with regard to surrogacy agreements in Canada is the wide variation offered by the surrogate in terms of what is expected of them ideally and some of the legal ambiguities and grey areas involved with righting these contracts. As mentioned, there are many unknowns when it comes to surrogacy as a whole in Canada and the same could be said for surrogacy agreements. A surrogacy agreement template in Canada could be used as it provides a basis for what a contract might address; however, it needs to be reviewed very carefully as individual intent, financial compensation expectations, and even the rights of the surrogate and the intended parents can vary in many ways. Furthermore, since the process itself can involve both domestic and international parties from time to time, there are no set rules or guidelines in terms of what a surrogacy agreement should entail as they would cover a much wider range of jurisdictions in the process. Many times the biggest issues or challenges in the creation of a surrogacy agreement involves the interpretation of one party or another making an assumption that the other intended something else from the contract. Furthermore , there may also be issues with individual needs not being clearly defined such as financial compensation, availability for doctor appointments during the pregnancy for the surrogate, and more. Even the legality of contracts could come into question in those jurisdictions where surrogacy agreements are outright illegal, leaving the surrogate in a precarious position. The best way to deal with a surrogacy agreement in Canada is to make sure to reach an understanding that both parties feel comfortable with. This includes coming to recognition of who retains parental rights after the baby is born, the legal rights of the surrogate, and to ensure the surrogate is educated on what she is getting in to. It is also wise to have a lawyer who specializes in the area of surrogacy domestic law review all aspects of the contract to ensure that it is legally binding.