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Ottawa Fertility Law - Great Expectations

Surrogacy Agreements

Surrogacy AgreementsThe Assisted Human Reproduction Act (AHRA) aims to prevent commodification of reproductive materials.

While it is illegal to pay a surrogate anything except certain expenses, the AHRA also criminalizes the payment of an itermediary.

Creating a contract

Once the intended parent(s) have located a surrogate mother, a surrogacy agreement must be drafted and negotiated.

The contract stipulates the legal obligations and rights of each party to the agreement. The surrogate should have her own lawyer provide independent legal advice.

The lawyer for the Intended parent(s) and the lawyer for the surrogate will usually have to engage in a process of negotiation to reach mutually agreeable terms.

It is illegal to pay a surrogate to carry a child. It is not illegal to pay expenses relating to the surrogacy.

It is not permissible to pay a woman’s wages so she can stay home during the pregnancy, unless it is medically necessary to do so.

A surrogacy agreement should set out what expenses are compensable.

The following are typical considerations in a surrogacy agreement:

Parentage

Depending upon the circumstances of the commissioning parent(s), a Declaration of Parentage or legal adoption may be necessary after the baby has been born.

The initial presumption is that the surrogate is the mother. The Vital Statistics Act requires all “births” – which are defined simply as “the complete expulsion or extraction from its mother” which results in a live birth – to be registered within 30 days.

The process is to delay the registration of the birth and bring an application for declaration of parentage. This is so that the registration and the birth certificate can be issued in the names of the intended parents. There is no requirement for an intended parent to be genetically linked.

See also: parental rights.

* Source: Findlay, Barbara. Baby Steps: Assisted Human Reproductive Technology and the B.C. Family Law Act. Continuing Legal Education Society of British Columbia. Page 19.