Frequently Asked Questions

The Assisted Human Reproduction Act was proclaimed, in part, in April, 2004. Section 6 of the Act deals with surrogacy. Surrogacy is legal in Canada. Payment of compensation to a woman to act as a surrogate is a prohibited act, but reimbursement of a surrogate’s out of pocket expenses is permitted.

Section 7 of the Assisted Human Reproduction Act deals with ovum donation. Egg donation is legal in Canada. The purchase of eggs from a donor or anyone acting on behalf of a donor is a prohibited act. Reimbursement of expenses incurred in the course of the donation is permitted. The Agency will enact regulations which determine which types of expenses are reimbursable.

A gestational surrogate carries a child to whom she is genetically unrelated. A traditional surrogate is the child’s genetic mother and birth mother, and enters into the pregnancy with the intention of relinquishing custody once the baby is born.

Several of the Toronto area clinics, but not all, are open to third party reproductive technology. Fewer of the clinics outside the greater Toronto area are open to surrogacy and/or egg donation.

There are several internet websites that allow individuals to post messages either looking for a surrogate or to respond to a message of a potential surrogate. Extreme caution should be used in responding to these messages. Whether a surrogate is found through word of mouth, through the physician’s office, or through one of the consultants working in the area, it is wise to proceed slowly and follow all recommended steps. If anyone offers to help you find a surrogate, ask many questions about their qualifications, and consult with a lawyer to understand how the law governs your relationship with that person.

The process for finding an egg donor in both Canada and the United States is described on the Egg Donation page.

Potential surrogates looking for intended parents should exhibit caution: meet the intended parents several times, and insist on having your own lawyer. If any red flags are raised, explore them carefully before deciding to proceed.

A contract setting out everyone’s legal rights and obligations is absolutely vital. Timing is also important: the agreement should be signed before the surrogate undergoes an embryo transfer.

The clinic may or may not require you to have a contract, but a contract is the most popular method of severing the donor’s rights to any child born through egg donation. A contract is recommended to set out everyone’s respective rights and obligations.

The general theory is that it is impossible to effectively give up your rights if you don’t know what those rights are. Furthermore, the egg donor’s interests are different from the Intended Parents’ interests, so she should be represented by her own lawyer. It is important that each party fully understands what she/he is signing, and the assistance of a lawyer is vital in that regard.

Parentage is covered by provincial law, and differs from province to province. The All Families are Equal Act in Ontario will allow you to register the birth through an administrative process. No court order or adoption required.  A court order is required in some, but not all,  provinces.

The surrogate’s interests are different from the interests of the Intended Parents, and she should be represented by her own lawyer. It is important that each party fully understands what s/he is signing, and the assistance of a lawyer is vital in that regard. It would be a conflict of interest for one lawyer to represent both sides.

As a lawyer specializing in third party reproduction, I have spent a considerable amount of time fixing other people’s mistakes. Using a contract which is likely American, or an old form of agreement, will not save you any money in the long run. The clinic and provincial law may require independent legal advice as well.

Lawyers, like doctors, specialize in different areas of the law. So, the lawyer that helped you buy your first house will not be your best choice for preparing a surrogacy or donor contract. Find a lawyer who is actively involved in third party reproductive technology and don’t be afraid to ask about his/her experience in the field. Many family law lawyers list surrogacy as an area of expertise, yet they have never actually acted in a surrogacy agreement. It is not in your best interest to be their first or even tenth client.