There are two kinds of surrogacy: traditional and gestational. Traditional surrogacy is where there is a genetic connection between the surrogate and the child, and gestational surrogacy is where there is no such genetic connection. Contrary to popular conception, traditional surrogacy is not prohibited in Canada. However, it is riskier than gestational surrogacy in the sense that the surrogate is much more likely to become bonded with the child. Only about 1% of all surrogacies in Canada are traditional surrogacies.
Surrogacy law in Canada is governed by the Assisted Human Reproduction Act, in particular section 6, which:
(a) prohibits compensated surrogacy (that is, surrogacy must be done altruistically, and the only payments that are permitted are reimbursements of expenses incurred by the surrogate in relation to the surrogacy; typically receipts are required);
(b) sets a minimum age of 21 years for someone to act as a surrogate; and
(c) prohibits compensation for the services of a surrogate.
The law does not require it, but it is strongly recommended that the intended parents and the surrogate enter into a surrogacy agreement, and that both parties receive independent legal advice from separate lawyers before signing the agreement. Many of the provisions of a surrogacy agreement will not be legally enforceable. However, the idea is to plan and prepare for what will happen – that is, make informed decisions about the issues before they arise.
Key Things To Consider in a Surrogacy Agreement in Canada
1. Decisions about embryos. Decisions need to be made as to how many embryos will be transferred at a time and how many fetuses the surrogate is willing to carry, as well as what the plan is if the embryos split.
2. Medical issues – both during and after pregnancy. Decisions need to be made about what the plan is if there are medical issues during or after the pregnancy and/or if bed rest is needed.
3. Abortions / Selective reduction. Selective reduction is reducing the number of embryos the surrogate is carrying, if she is carrying more than one embryo. Decisions need to be made as to what circumstances the surrogate may have an abortion or selective reduction of embryos.
4. Type of maternal care. Decisions must be made as to the type of maternal care that will be provided – for instance, an obstetrician, midwife, or doula.
5. Lifestyle restrictions. Decisions must be made as to what lifestyle restrictions the surrogate agrees to during the surrogacy. Common restrictions include travel restrictions, as well as restrictions on the consumption of alcohol, nicotine, and nonprescription drugs.
6. Medical information. Typically, your medical information is confidential, and will only be disclosed to others upon your consent (with some exceptions). The agreement will need to set out what medical information of the surrogate can be shared with the intended parents, and give permission for this sharing.
7. Confidentiality. Typically, the parties will agree that various parts of their surrogacy arrangements are to be kept confidential.
8. What ifs. The surrogacy agreement will set out what happens if one or both of the intended parents dies, or if the intended parents separate or divorce.
9. Future relationship. Decisions will need to be made as to what sort of future relationship there will be between the surrogate and the child, as well as how and when the intended parents will inform the child about the surrogacy.