The Legal Side of Surrogacy & Artificial Reproductive Tech in Canada

Surrogacy and Artificial Reproductive Technologies (ART) play a significant role in helping couples realize their dreams. Whether LGBTQ+ families or those facing infertility, these options offer hope and new paths to parenthood. While both options are becoming increasingly popular and accessible, they also give rise to many legal complexities which are covered by Federal and Ontario legislation.

Defining Surrogacy and ART:

Surrogacy involves a person agreeing to carry and give birth to a child for another person or couple. This can help those who cannot conceive or carry a pregnancy themselves, as well as those with other reproductive challenges such as single parents, and same-sex or other LGTBQ+ couples.

Assisted Reproductive Technology (ART) involves medical procedures which revolutionize the way families can be formed. The range of available ART includes In vitro fertilization (IVF), Gamete (i.e. egg or sperm) donation, and Embryo storage.

Part One: Surrogacy

Legislative Constraints

Contrary to popular belief, surrogacy arrangements are completely legal in Canada. However, paying or receiving money for them is not. Any agreement that tries to provide otherwise will not be enforced. That’s because the federal Assisted Human Reproduction Act (AHRA) prohibits the following:

• Paying, offering to pay, or advertising to pay a person to be a surrogate 
• Accepting money for arranging the services of a surrogate 
• Paying or offering to pay someone to arrange for surrogacy services

However, the AHRA does allow the surrogate's reasonable expenses to be reimbursed, including medical costs, maternity clothes, and travel expenses for medical appointments. These must be documented with receipts, and are subject to the AHRA regulations. Despite these allowances, a written surrogacy agreement is highly recommended to outline the arrangement clearly.

Age Limits for Surrogacy

A surrogate must be at least 21 years of age. The law prohibits inducing or performing medical procedures to assist a person under this age in becoming a surrogate.

What’s in a Surrogacy Agreement?

Surrogacy agreements are negotiated contracts that have several functions, including:

• Confirming legal parentage
• Allocating the pre-natal responsibilities of the intended parents and the surrogate
• Addressing the reimbursement of the surrogate’s expenses
• Allocating the post-natal responsibilities between those involved

Family lawyers play a crucial role in drafting and reviewing these agreements, by ensuring they reflect the parties' intentions and comply with relevant laws.

Surrogacy Predicaments

Having a clear written surrogacy agreement will save you from the difficult legal scenario that developed in the Ontario case of Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159 (CanLII). An LGBTQ+ couple had arranged for a good friend to act as a surrogate for them with the biological father being a man she was newly dating. However she changed her mind about the arrangement four months after the child was born. This led to a protracted legal battle over who was entitled to a parenting order in connection with the now 18-month old girl.

The court introduced the case this way:

[6]       To be clear, this is not a case involving a legally-binding Surrogacy Agreement, nor is it an adoption case. As such, none of the usual safeguards for these types of parenting arrangements were adhered to by the parties. This is a case about everything the parties did wrong to achieve a particular goal, which ultimately led to the demise of a friendship, with a sweet little girl caught in the middle. At the end of the day, I am tasked in determining what parenting order should be made in Isabelle’s best interests.

While the parties’ arrangement was informal, the court still had to navigate the various complex laws around formal adoption and the rights of biological parents. It also had to evaluate the child’s own best interests, against the background of each couple’s parenting plans for her. In the end, after reviewing what it said were “thousands of pages tendered into evidence”, the court focused on the child’s need for permanency, ruling that she should remain in the care of the LGBTQ+ couple who had raised her from birth.

Part Two: ART Methods

As mentioned, ART includes various methods such as IVF, gamete donation, and embryo storage. As with surrogacy, ART methods are governed by a patchwork of federal and provincial legislation.

What’s Allowed; What’s Prohibited

The federal AHRA strictly prohibits the payment of money in exchange for gametes or embryos. The penalties for breaching the AHRA are stiff: As just one example, if you are convicted of selling gametes or embryos, you can face a fine of up to $250,000 or a term of imprisonment not exceeding 10 years.

However it is not illegal to be a sperm or egg donor. In Ontario, the Children’s Law Reform Act (CLRA) adds clarity to this kind of situation, stating that donors are deemed to give up their parental rights, in favour of the intended parents who are recognized as the legal parents.

Legal Status of Frozen Embryos

In ART, embryos are often stored for future use by the couple or individual. This can pose challenges around their legal status and permitted use. In Ontario, clinics are subject to provincial guidelines, and offer clients written agreements to cover off these topics. But disputes still arise, and the courts must sometimes intervene.

Posthumous Reproduction

Another delicate issue involves the use of gametes or embryos after the donor is deceased. In Canada, the law under the AHRA is clear: If a person’s gametes or embryos are to be used posthumously, the person must have given their clear written consent while still alive. Otherwise, they cannot be used. Nor can a person’s human reproductive material be removed from their body after death, for the purpose of creating an embryo, unless they gave written consent.

Part Three: Parental Rights/ Responsibilities, and Declarations of Parentage

The final issue arising from both surrogacy and ART is around legal parentage. In Ontario, the law expressly recognizes the diversity of modern families, and the fact that children can benefit from the influence of multiple individuals. For example:

• The Family Law Act recognizes that a child born through ART methods may have more than two legal parents – including the intended parents and surrogates. Ideally, the individuals will enter into a binding legal agreement that delineates their respective rights and obligations.
• Under the CLRA, parents with a child born through a surrogate can get a court-ordered Declaration of Parentage, recognizing their legal status as parents. The surrogate mother must give her informed and voluntary consent to give up her rights, but must wait at least seven days after giving birth to do so.
• The All Families Are Equal Act expressly recognizes the diversity of modern LGBTQ+ and other families. It simplified the process for recognizing up to four parents on a child’s Birth Certificate, provided there is a written agreement before the child is conceived. No court order is necessary. It also mandates that gender-specific language like “mother” and “father” to be dropped from the legislation, in favour of more neutral language like “parent”.

The Takeaways

The use of surrogacy and ART is fraught with complexities: Legal compliance, informed consent, and parenting rights, to name a few.

If you’re considering these as options, it’s important to get the help of an experienced lawyer. They can explain the nuances of the legal requirements, assist with negotiating the agreements between the various parties, and – if necessary – assist with litigation to resolve any disputes.