Legal Considerations of Surrogacy Part II: Legal Considerations for Intended Parents – Family Law

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Surrogacy is a crucial family planning option and intended parents and surrogates often have (or should have) questions regarding their legal rights and the surrogacy process itself.

This is the second in a series of articles discussing the legal considerations of surrogacy. It will look at three common legal issues expectant parents have related to surrogacy.

As discussed in Part I of this series, in Alberta a court order is required to establish the intended parents as the legal parents of the child. A common question asked by intended parents is “does the name of the surrogate appear on the birth certificate?” In Alberta, the answer is – no – or at least not necessarily. The surrogate mother will automatically be recognized as the “natural” mother in Alberta. But, once the parties submit a declaration of parentage (which includes the required surrogate consent) and it is approved by the court, the intended parents file these documents with Alberta Vital Statistics. Vital statistics then issues a birth certificate listing only the intended parents as the parents of the surrogate child and the original birth registration listing the surrogate is destroyed. The process in Alberta is quick and usually intended parents can be listed on the birth certificate in about two weeks.

Alternatively, in some countries it may not be possible to have two males recognized on one birth certificate. Therefore, in the case of male intending parents of the same sex who live abroad, it is possible to keep the surrogate mother on the birth certificate and register one of the male intending parents as the other parent. This will allow the birth certificate to be registered in the intended parents’ country of origin.

Another question that may arise during the surrogacy process is whether the intended parents should be genetically related to the child born through surrogacy. Although strictly speaking the answer is no, from a practical point of view it is preferable that at least one of the intended parents has a genetic connection. Indeed, in Alberta, the law requires a genetic link with at least one of the intended parents in order to use the accelerated legal process to declare parentage.

If the Intended Parents are using a donated embryo such that neither of them is genetically related to the child, it is recommended that the Intended Parents not use a surrogate mother who will give birth in Alberta. Indeed, the intended parents would have to go through the much longer, invasive and costly adoption process to be recognized as the child’s legal parents. It may therefore be preferable to use a surrogate in another jurisdiction.

Finally, future parents often want to know how they can thank the surrogate. Pregnancy is very taxing physically and emotionally. This situation is often compounded in the context of surrogacy given the additional psychological and physical testing and other medical and legal requirements associated with surrogacy. Often, expectant parents are so grateful that they would like to give the surrogate mother gifts. For example, offer to pay her mortgage, buy her a car, etc. As discussed in Part I of this series, surrogacy in Canada is altruistic and a surrogate cannot be paid to act as a surrogate – it is illegal in Canada and punishable by a fine not exceeding 500,000 $ or imprisonment for up to 10 years – although there is only one prosecution under the Assisted Human Reproduction Act. However, some personal gifts such as flowers, pastries, fruit baskets or gift certificates are considered acceptable and are common practice. Otherwise, only certain expenses can be reimbursed which must comply with the regulations. Reimbursable expenses will be discussed in more detail in Part III: Legal Considerations for Surrogates.

As surrogacy is heavily regulated by Canadian law, lawyers play a vital role as they assist the parties by providing services such as: drafting a surrogacy agreement, information on the legal framework in Canada and the establishment of the filiation of the future parents.

Please look for my latest article to be published in May 2022: 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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