Top 5 surrogacy agreement questions

Today, about 1 in every 6 couples in Canada struggle with infertility. This number has doubled since the 1980s.* As a result, more and more folks are turning to alternative reproductive technology (ART) to help grow their families.

Some forms of ART require the assistance of other participants, such as a surrogate who carries the pregnancy to term for the prospective parent(s), or donors of genetic material (i.e.. sperm or ova).

In Ontario, a contract between the intended parent(s) and other participant(s) is often recommended, and in some instances it is required. To understand your rights and options, it is important to consult with a family lawyer experienced in the assisted human reproduction field.

This is an intimate, personal and emotionally trying undertaking. The lawyers of the Family Law practice group at Harrison Pensa have the experience and knowledge to help you navigate your ART journey.

*Source: Government of Canada

Surrogacy Agreements

Surrogacy is one alternative reproductive method. Surrogacy is when a non-parent carries a pregnancy to term for the intended parents. A surrogacy agreement is an integral part of this process. The surrogacy agreement sets out the rights and responsibilities of the intended parents, the surrogate, and, where applicable, the surrogate’s spouse.

The following are the most common questions asked about surrogacy agreements:

Q: Does the Surrogate need independent legal advice?

A: Yes, to meet the requirements of the Children’s Law Reform Act to be considered a Surrogacy Agreement, the Surrogate must have independent legal advice.

Q: Can the surrogate be compensated?

A: No, in Canada the surrogate cannot receive compensation, only reimbursement for expenses incurred as a result of the surrogacy.

Q: We found a surrogacy agreement template online – can’t we just use that?

A: Not recommended. Surrogacy law is extremely jurisdictionally specific. In Ontario, we are governed by the Children’s Law Reform Act, as well as the federal Assisted Human Reproduction Act. While the AHRA is nation-wide across Canada, the provincial family law legislation varies from province to province. The assisted human reproduction laws also vary widely between Canada and the United States (and globally). In addition, there are so many variables that a template simply cannot predict for each unique situation. Having the contract drawn up by an experienced family lawyer is recommended, and independent legal advice is required.

Q: What happens if the intended parents separate or if one or more of the intended parents passes away before the birth?

A: These issues are often addressed in surrogacy agreements, and depend on the wishes of the parties. The parties have some control over how they would like these terms to be structured. It is also important for all parties to ensure they update their Wills and Estate Planning to reflect the intentions of the surrogacy agreement.

Q: Can the agreement be ended early?

A:  Yes, there are several reasons an agreement may end prior to a successful embryo implantation. For instance, the medical team may make a recommendation that one or more of the participants are no longer good candidates. A well-crafted agreement will set out appropriate terms and conditions, such as repayment of expenses incurred, so as to protect all parties’ interests appropriately and encourage a cooperative relationship.

The above is not legal advice, as each situation is unique. If you are interested in finding out more about surrogacy agreements, please contact the Family Law practice group at Harrison Pensa.