Gay Surrogacy in Canada
The Law in Canada
In Canada, laws around surrogacy are governed by the Assisted Human Reproduction Act (2004). It allows intended parents to reimburse receipted pregnancy-related expenses.
There is currently a very cloudy understanding of what constitutes a reimbursable expense. There is so clarity regarding things like maternity clothing, medicines, childcare and hotel accommodation for appointments. But for other potential expenditures, the law is not clear at all. This makes it even more critical to have a good lawyer and an accountant who is fluent in the current law if you aren’t.
Please note that while surrogacy is legal in both the United States and Canada, the laws are very different. If you are caught paying a surrogate for something that does not qualify as a reimbursable expense, you could pay hefty fines.
The law is under review by the current government, but changes aren’t expected until late 2019 or 2020.
For additional information about the laws regarding surrogacy in Canada, lawyer Shirley Eve Levitan has outlined a few important points on her website.
Different Provinces, Different Rules
Each province has slightly different rules around surrogacy, especially for post-birth. Consult with a lawyer in the province where your surrogate plans on giving birth to ensure you have a full understanding of legal issues that may arise. For example, some provinces may not issue health insurance to the child if both parents are not Canadian residents. Another issue could be the Declaration of Parentage. In Manitoba, the woman who gives birth is listed on the birth certificate until the legal parentage has been established in provincial court (this can take a few days).
With the passing of the All Families Are Equal Act, Ontario law recognizes the legal status of all parents, regardless of sexuality, gender identity, means of conception or genetic relation. This significantly reduces the burden for same sex parents and those using surrogates by eliminating the need to go through an adoption process to be recognized as a parent. In Ontario, up to four parents can be listed on a birth registration, which affects the care that midwives provide and the direction they give clients around birth registration. (Excerpt from OntarioMidwives.ca)
If your child is born via gestational surrogate, you will need to complete paperwork from ServiceOntario as well as provide proof of birth documentation which can be obtained from the hospital in order to receive an OHIP card. The province’s requirements continue to change and there is a lack of understanding by many ServiceOntario employees with regards to how to process an OHIP card where the child is born via surrogate mother. It is advised that IPs call ServiceOntario prior to the birth in order to ensure a smooth application process.
Applying for a birth certificate also requires notarized documentation from both Intended Parents and Surrogate. These documents can contain no mistakes/corrections so print out a few and review carefully before sending them into ServiceOntario. The document for the surrogate can be found here and the document from IPs can be found here.
British Columbia and Alberta
B.C. and Alberta have updated their laws around parentage to make it easier for IPs to obtain a birth certificate, passport and health insurance. For more information on surrogacy in B.C., click here.
Manitoba has the most outdated surrogacy laws in Canada. In order for IPs to become the legal parents, the surrogate can give it up for adoption, and the parents then have to apply to adopt their own child or they can apply for parentage, which is a streamlined court process. It is critical to work with an experienced lawyer if your surrogate plans on giving birth in Manitoba.
Along with Manitoba, Quebec’s laws around surrogacy are also outdated and can provide additional complications for parents. Legally, a surrogacy contract has no value if the child is born in the province. There are exceptions, but it is important to understand the legal implications of a surrogate giving birth in Quebec. According to current laws, the surrogate mother is the person who will be listed as the parent on the child’s birth certificate (likely alongside the biological IP).
If your child is born in NB, your surrogate will be listed on the original birth certificate. But if you hire an experienced lawyer, IPs should be able to get the correct names processed quite quickly. There should be no delay in accessing health insurance.
International Intended Parents
International IPs could incur additional medical costs within any of the Canadian provinces. Many hospitals have started to charge fees to out-of-province or international IPs which can be in the thousands of dollars. It is important to check with your surrogate’s local hospital before the birth to confirm any additional costs or fees that will be incurred.
International IPs are strongly recommended to work with an experienced agency and lawyer for their respective surrogacy journeys.
A legal contract is strongly recommended for:
Legal contracts are written by your lawyer and reviewed by the lawyers you hire for both the donor and the surrogate.
Contracts lay out practical information like reimbursements, but also very important pieces related to the child’s custody/parentage. A good contract will protect IPs, donors, and surrogates from unnecessary “messiness” during the surrogacy process. Many hospitals require some form of the contract between IPs and surrogates prior to the birth.