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Ottawa Fertility Law - Great Expectations


Surrogacy is the process resulting from a woman agreeing to carry a child for another person (or couple), with the intention of surrendering the child at birth. There are two types of surrogacy: genetic (the surrogate is genetically related to the child) and gestational (the surrogate carries the foetus but is not genetically related to it).

Who might need surrogacy?

Surrogacy in Canada

SurrogacySurrogacy is legal in Canada. However, it is not legal for surrogacy to be financially compensated. The Assisted Human Reproduction Act prohibits the provision or acceptance of consideration to a woman for acting as a surrogate.

It is a criminal offence to pay for, to offer to pay for, to receive payment for, or to advertise that payment will be made for surrogacy.

However, it is legal to reimburse a surrogate mother for her reasonable expenses incurred as a result of the surrogacy. Qualifying expenses have not yet been defined either by statute or case law.

The minimum age for a surrogate in Canada is 21 years.

Restrictions on surrogacy exist in part to prevent women from being exploited by someone in a position of authority over them.

Surrogacy contracts should not be entered with someone who has influence over the surrogate, for example an employer.

A surrogate may sometimes reside in different province than the intended parents. Each province in Canada has a different legal regime regarding surrogates and birth registrations/declarations. To avoid unexpected problems, you have to get early legal advice based upon the specific facts of your own situation.

Genetic or gestational surrogacy

There are two types of surrogacy: genetic surrogacy (also known as traditional surrogacy) and gestational surrogacy.

Where the surrogate mother is genetically related to the child she is carrying on behalf of the intended parent, it is referred to as genetic or traditional surrogacy. Genetic surrogacy does not necessarily require in vitro fertilization, the way gestational surrogacy does.

Although genetic surrogacy is legal in Canada, it may be difficult to find a fertility clinic which will perform genetic surrogacy, because of the risks associated with carrying a child genetically related to the surrogate, among other things.

Where the gestational carrier is not genetically link to the child she is carrying, it is referred to as gestational surrogacy.

In gestational surrogacy, either the egg of the mother who is seeking to become a parent or the egg of a donor is harvested for fertilization in vitro. The fertilized egg of a donor is then implanted in the surrogate.

Surrogacy in the media