There are two types of surrogacy: traditional and gestational. Surrogacy in Canada tends to be gestational surrogacy,
but both types exist.
A traditional surrogate allows herself to be inseminated with the intended father’s sperm with the intention of giving up the child once it is born. The child will be her genetic child. Although traditional surrogacy still exists in this Canada, few physicians will inseminate a woman knowing that she intends to give up the child and few lawyers would choose to act on behalf of either party given the unreliable result. Traditional surrogacy has become a self-help remedy and rarely involves a medical facility. With or without a surrogacy agreement, it is impossible to adequately safeguard the rights of the intended parents. The lower costs associated with traditional surrogacy make it an attractive option to some, but it carries tremendous legal risk.
Gestational surrogacy involves the transfer of an unrelated embryo to the uterus of the surrogate. The embryo could be the result of IVF using the intended mother’s egg and the intended father’s sperm or donor gametes could be involved. The main characteristic of gestational surrogacy is that the surrogate is unrelated to the child. Most clinics in Ontario and in Canada require a pre-conception surrogacy agreement to be entered into before the embryo transfer.
The Assisted Human Reproduction Act (the “AHRA”) prohibits several surrogacy related activities. Surrogacy itself is not banned, but payment of consideration or the offer of payment to a surrogate is a prohibited act. Pursuant to Section 12 (which has not yet been proclaimed), all of the surrogate’s reasonable, out of pocket expenses may be reimbursed to her. At some point, the Federal Government will proclaim regulations to this section which may limit or otherwise regulate the types of expenses which may be reimbursed, but until that date, all expenses may be reimbursed provided that they are reasonable and related to the surrogacy.
In the absence of a provincial statutory framework clarifying parentage, the possibility always exists that a gestational surrogate will make a claim for parental rights which may include custody or access. In order to show evidence of pre-conception intent, many intended parents enter into agreements which make the intention of all parties clear. Most clinics both in Canada and in the United States require that surrogacy contracts be completed before the embryo transfer. US case law has placed great emphasis on enforcement of the pre-conception intention of all parties, as evidenced by an agreement.