Couples and individuals who are struggling with infertility can look to surrogacy, or using a gestational carrier, as another means of adding a new member to the family. Here’s what you need to know.
What exactly is surrogacy?
There are two types of surrogacy: gestational surrogacy and traditional surrogacy. With traditional surrogacy, a woman is inseminated with the intended father’s sperm or donor sperm. She is the genetic mother but has the intention of giving up the baby after the delivery. In gestational surrogacy, an unrelated embryo created from the intended mother or father or from donor gametes is transferred to the uterus of the carrier. Under the Assisted Human Reproduction Act, a surrogate mother can only be reimbursed for out-of-pocket expenses. A gestational surrogate can’t be paid for carrying a fetus to term.
What to do beforehand
Before diving in, it’s recommended that intended parents (IPs) consult with a lawyer who specializes in fertility to understand how the law surrounding surrogacy operates in Canada. “I like to provide advice at the initial stage because that can help them find a surrogate or an egg or sperm donor,” says Kelly D. Jordan, a fertility and family lawyer based in Toronto. “Clients can consult me at different points in the process if they need further legal advice.”
Surrogacy is referred by a doctor, so it’s important that IPs speak with their health care provider first to make sure that they’ve exhausted all other options. Surrogates, whether traditional or gestational, are often found through family and friends. It’s a sensitive and tricky conversation to have, but it’s worth broaching the topic if you think you know someone who may be willing to help.
If you’re not able to find a gestational surrogate on your own (it really is a big thing to ask of someone), there are online resources like Surrogacy in Canada Online (SCO), a 15-year-old consultancy run by former surrogate Sally Rhoads-Heinrich. IPs can look through profiles of surrogate mothers and contact them directly. Rhoads-Heinrich likens the matching process—which can take anywhere from one month to two years—to dating. “[The surrogates] want to have a relationship or at least get to know each other,” she says. “You could never do this type of matching if the parties didn’t know each other.”
There are technical intricacies, too: Both parties have to want to start at the same time and have to agree if they’re going to transfer the embryos and are willing to carry twins or provide breastmilk. “Plus, they have to like each other,” she says.
After the IPs are matched with a gestational surrogate, they’ll meet with a fertility lawyer once again to write up the contracts. These contracts cover the terms and conditions of the surrogacy arrangement, including who is responsible for child support, custody of the child and provisions on what expenses will be paid to the surrogate. Expenses vary, depending on the surrogate’s needs, but can include maternity clothes, vitamins, legal fees, medications, lost wages, mileage (for appointments), a partial amount of groceries (such as organic food and cravings) and child care. At this stage, the surrogate will have a medical and psychological screening done by a fertility clinic. Consultancy programs like SCO also pre-screen surrogates to make sure that they meet the proper physical, emotional and psychological wellness qualifications. The surrogate will also have her own legal counsel and sign a contract that outlines the rights and obligations of all parties. “It’s there to protect her and govern what happens at the clinic, what procedures she agrees to and how many embryos she is willing to implant,” says Jordan.
Traditional surrogacies don’t require contracts because they don’t require a lawyer. “In traditional surrogacy, the law is quite clear: You can’t contract to give custody of a child that is yours in advance of the child being born,” says Jordan. Though traditional surrogacy is very rare in Canada, IPs who choose to engage in it trust that the surrogate will give up the baby at birth. The vast majority of fertility clinics don’t help facilitate traditional surrogacy. Because traditional surrogacy involves two people creating a child legally, it’s in the hands of the birth mother regarding what she wants to do with the child. “That’s why it’s a dangerous thing to do,” says Jordan. “If a traditional surrogate doesn’t want to relinquish the child at birth, she would likely keep the child and the IPs would have to pay child support to her.”
The laws on the post-birth process vary from province to province, so it’s important for IPs to consult with an attorney who is knowledgeable of the provincial laws where the child will be born. Some provinces are stricter than others. Under British Columbia’s Family Law Act, for example, if there is already an adequate legal contract in place before the child is born, IPs can get on the birth registration easily without a court application. “In other provinces, such as Alberta and Ontario, the post-birth process requires IPs to go to court to be declared as the parents of the children through the surrogacy,” says Jordan. “It’s more of a complicated process, but it’s there and it works.”
“Increasingly, I find that IPs are more willing to consider third-party reproduction to have a family if that’s a possibility in their situation,” says Jordan, “because adoption can be a very difficult road that’s uncertain and there can be long waits.”