Legal Considerations About Surrogacy Part I: Why Do I Need a Lawyer and Surrogacy Agreement? – Family law


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Surrogacy is a crucial family planning option, but it can be an emotional process.

Intended parents have usually gone through a long emotional journey to get to the point of deciding that they want to consider surrogacy and few things are more important to people than their children. Therefore, when things go wrong, the consequences can be devastating for everyone involved. This is especially true because in Canada, where for-profit surrogacy is illegal, intended parents and surrogate are often emotionally bonded to each other. Therefore, Intended Parents and Surrogates often have questions regarding their legal rights and the surrogacy process itself.

Lawyers play a central role for parties engaging in surrogacy by providing services such as: drafting a surrogacy agreement, information on the legal framework in Canada, and establishing the parentage of future parents.

This is the first in a series of articles that will examine some of the key legal issues related to surrogacy. In our first article, we tackle the question, do you need a lawyer and a surrogacy agreement?

As lawyers, we recommend that you draft a surrogacy agreement with the help of legal counsel. However, this adds additional costs to what is already usually an expensive process, so some people may wonder if they really need a lawyer and a surrogacy agreement.

Fertility clinics require intended parents and surrogate mothers to have a written surrogacy agreement drawn up by a lawyer, although this is not a technical requirement under Alberta or federal law. . The question is whether the terms of this agreement, as each party understands them, are truly enforceable.

Hiring a lawyer to draft a surrogacy agreement is essential in this regard. For example, in many cases, especially those involving the bodily autonomy of a surrogate mother, the contract is likely not enforceable. However, the assistance of a lawyer is not limited to allowing you to check off a box on the fertility clinic checklist or trying to create a legally binding contract. An attorney familiar with surrogacy law can guide helpful discussions and pose important questions for the parties to consider. Surrogacy is unique in that the Intended Parent(s) and their Surrogate are each on an independent yet parallel path. The role of the lawyer is to help the parties come to a mutual understanding of each other’s intentions and expectations throughout the process and to help the parties avoid disputes during their motherhood journey. substitution.

Lawyers also provide valuable information to parties regarding the legal framework surrounding surrogacy. This is important because surrogacy is highly regulated in Canada. In Canada, surrogacy is based on an altruistic model. This means that Intended Parents cannot provide, and Surrogates cannot accept, any form of compensation (including gifts, services, goods, money, etc.) for acting as a Surrogate. In fact, the Assisted Human Reproduction Act, criminalizes any form of profit related to surrogacy. However, a surrogate may be reimbursed for certain out-of-pocket expenses necessary due to the pregnancy. But again, there are rules surrounding the reimbursement of expenses.

Additionally, and arguably one of the most important aspects for Intended Parents, is to ensure that the Intended Parents are named on the child’s birth certificate. In Alberta, a court order is required to establish that the intended parents are the legal parents of the child. Lawyers help draft court documents, obtain the required consent from the surrogate after the birth, file the case in court, and ultimately obtain the court order that will allow the intended parents to be named on the birth certificate of the child.

The surrogacy journey can be a remarkable and joyful experience for intended parents and surrogates, especially when the parties have a deep understanding of each other’s expectations and intentions and of the process itself.

Please see my bi-weekly articles coming May 2022: Part II: Legal Considerations for Intended Parents and Part III: Legal Considerations for Surrogate Mothers.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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