Legal Considerations of Surrogacy Part III: Legal Considerations for Surrogate Mothers – Family Law


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

This is the third in a series of articles discussing the legal considerations of surrogacy. It will examine three common legal issues that surrogates have related to surrogacy.

As discussed in Part I and Part II of this series, surrogacy in Canada is based on an altruistic model and surrogacy for profit is illegal. However, surrogate mothers may be reimbursed for certain out-of-pocket expenses necessary due to the pregnancy. Since surrogate mothers in Canada act selflessly, the idea is that the surrogate should never be personally responsible for any expenses resulting from the pregnancy.

Many surrogates have questions regarding reimbursement. Reimbursement of expenses is strictly regulated in Canada and surrogate mothers often wonder how and up to what amount they can be reimbursed for pregnancy-related expenses. The Reimbursement related to the Assisted Human Reproduction Regulations(“theRegulations“) outline the types of expenses eligible for reimbursement, but there is no limit to the amount of expenses that can be reimbursed. Types of eligible expenses include, but are not limited to, dependent care and pet care companionship, legal services, travel expenses, maternity clothes, prenatal exercise classes, and various health, disability, travel, or life insurance. Really, that’s all that’s needed as a result of pregnancy. .

The Regulations also provide that the surrogate mother must produce a receipt for each expense as well as a statement containing additional information regarding the expense, failing which the surrogate mother cannot be reimbursed. Certain product or service expenses also require a medical note from a physician recommending the product or service to be eligible for reimbursement.

Importantly, reimbursement of lost wages is also permitted under the Regulations, but the surrogate must provide a written medical certificate from a qualified physician stating that continuing to work may pose a health risk to the surrogate. or that of the baby.

Another question often asked by surrogate mothers, especially when the surrogate and the intended parents are friends or family, is why all parties need independent legal advice regarding the maternity agreement of substitution. First, it is usually necessary to obtain the court order to grant parentage to the intended parents. Although not a legal requirement in Alberta like some other Canadian provinces, it is a best practice. Indeed, the interests of the surrogate mother and the intended parents are naturally in conflict. It is important that the surrogate has her own attorney to explain her rights and obligations under the agreement or to plead on behalf of the surrogate when the surrogate may not be comfortable with some of the terms of the agreement. ‘OK. For example, the types of prenatal tests or procedures the surrogate is willing to undergo and ensuring that the agreement clearly states that the surrogate and her spouse or partner, if applicable, are not expected to have any financial or parental obligations towards a child born through surrogacy.

Finally, a surrogate may be curious about confidentiality obligations or restrictions, including posting on social media about her surrogacy journey. Research suggests that surrogates are often portrayed as nonconforming extroverts and it is not uncommon for surrogates to want to share their journey publicly with friends and family or gain support from other surrogates through groups or online forums. Also, pregnancy is not something that can be easily hidden given the physical and lifestyle changes that come with pregnancy.

Comparatively, Intended Parents may have a variety of reasons why they are not comfortable sharing publicly, on social media or otherwise, that they are the Intended Parents for all or part of the pregnancy of the surrogate mother. Sometimes it is enough for the parties to agree that the surrogate does not post public messages and personally identify the intended parents, or that the surrogate refrains from discussing surrogacy up to a certain point. pregnancy, for example after the first trimester. A well-drafted surrogacy agreement should cover any confidentiality restrictions or obligations, including the use of social media.

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

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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