Fertility Law FAQ

Yes, gamete donation is legal in Canada. It is governed under the Assisted Human Reproduction Act (section 7), stating that donors are not to be compensated for their gametes. Out-of-pocket expenses related to the donation process may be reimbursed on a case-by-case basis. Ideally, the specifics of any donation arrangement should be covered in a legal contract.

We believe a donor agreement is required to protect the parties entering into a donor agreement to set out the rights of the recipient, and to properly sever any rights/obligations to the child the donor may have now or in the future.

Yes, the gamete donor needs to be represented by a lawyer. There is a conflict of interest if one lawyer were to represent both parties and the parties must learn of all aspects of the agreement they are entering into, including the right to be released and/or waived by the agreement set forth under the state of law.

Egg donation is defined as a medical procedure wherein the egg donor undergoes cycle(s) monitored by a doctor where her ova is retrieved through surgery. The retrieved ova are then donated to another person to then be used for reproduction purposes. Proper medical advice should be sought before undergoing egg donation.

There are a couple of steps to go through to find an egg donor in Canada. Typically women first approach other women in their circle of friends and family to see if they would be an egg donor. If no known donors are available, you would proceed with a third party donor. One can work with an egg donor agency or looking online to find a donor. Please note that there are emotional dynamics “in play” when dealing with friends and family on such a sensitive topic.

When finding a donor through an agency, payment may be necessary for the egg. This is not prohibited under the federal legislation act of Canada. If you choose to find your own, it is prohibited to ‘purchase’ the ova under the Assisted Human Reproduction Act, S.C. 2004, c.2.  When writing your own advertisement, there shall be no mention of payment or compensation of any kind. You are strongly advised to consult with a lawyer prior to proceeding.

Currently, legislation regarding reproductive technology is found in 36 states. The regulatory environment varies from state to state, as reproductive technology is governed by state legislation, not federally. When finding an egg donor in the US, you have two choices: (i) find an American egg donor and American physician, or (ii) work with an American egg donor agency who will facilitate the donor’s travel to Canada, which will allow you to undergo the cycle with your own physician in Canada. The model of flying the US donor to Canada is quite popular, but it is uncertain if it conforms with the Act. Some clients in the USA will find an egg donor on your behalf, this is a common practice in the US. You are strongly advised to consult with a lawyer prior to proceeding.  You are strongly advised to consult with a lawyer prior to proceeding.

Generally speaking, most IVF physicians prefer the transfer of fresh embryos over the transfer of frozen embryos for in vitro fertilization (IVF).  However, some recent evidence suggests that frozen-embryo transfer may improve the live-birth rate and lower the rates of the ovarian hyper stimulation syndrome and pregnancy complications in women with the polycystic ovary syndrome.  Each IVF physician will have their own preference.  You are strongly advised to discuss this important decisionIVF physicianto understand the pros and cons prior to proceeding.

Surrogacy is an arrangement between a woman (the surrogate) and an individual or couple (the intended parent(s)) whereby the surrogate agrees to become pregnant for the purpose of gestating and giving birth to a child who will be raised by said intended parents.

1. Gestational Surrogacy: The intended father’s sperm fertilizes the mother’s egg by in vitro fertilization
   (IVF), to create an embryo that is transferred to and gestated by the surrogate mother. Through this method, the child is genetically related to both parents, and not to the surrogate mother.
2. Gestational Surrogacy & Egg Donation:  When there is no intended mother, or if the intended mother is unable to contribute eggs, the intended father’s sperm is used to fertilize a donor egg to create an embryo transferred to and gestated by the surrogate mother. Through this method, the child is genetically related to the intended father, and the surrogate mother has no genetic relation.
3. Gestational Surrogacy & Donation Sperm: When there is no intended father, or if the intended father is unable to contribute sperm, the surrogate mother carries an embryo created from donor sperm and the intended mother’s egg.  Through this method, the child born is genetically related to the intended mother, and not the surrogate mother.
4. Gestational Surrogacy & Donation Embryo: When neither intended parent has the ability to contribute their gametes (egg and sperm), the surrogate mother may carry a donated embryo. Through this method, the child has no genetic relationship to the intended parents or the surrogate mother.
5. Traditional Surrogacy: Artificial insemination occurs with the intended father’s sperm with a surrogate mother.  Through this approach, the child born is genetically related to the intended father and the surrogate mother.
6. Traditional Surrogacy & Donor Sperm: Artificial insemination occurs with a surrogate mother and donor sperm.  Through this approach, the child born is not genetically related to the intended father or intended mother.

Surrogacy is legal in Canada and is, for the most part, governed under the federal legislation act, the Assisted Human Reproduction Act, proclaimed, in part, in April 2004.  Certain elements of surrogacy (such as the birth declaration process) is governed by provincial law (specifically, the province where the birth takes place).

Surrogate mothers may not be paid (can’t profit) for this surrogacy. As found in section 6 of the Assisted Human Reproduction Act, surrogate mothers in Canada can only be reimbursed for their own out-of-pocket expenses related to the surrogacy.  A lawyer should be contacted to discuss the specifics of these arrangements.

Currently, no regulations under the Assisted Human Reproduction Act dictate what may or may not be considered an out-of-pocket expense. Hence, such expenses may consist of maternity clothing, healthy food, prenatal vitamins, childcare, household assistance, travel costs, lost wages while on doctor-prescribed bed rest, medications, medical bills, etc. are often a reimbursable expense. A lawyer should be consulted to discuss the specifics of these arrangements.

There are no firm rules, however, in most situations, surrogate mothers should be between 21-45 years old.

It is extremely necessary to enter into a formal surrogacy agreement prepared by a lawyer and independently reviewed by the other party(s)’ lawyer, to set out the rights and responsibilities of all parties, in advance of the embryo transfer. Surrogacy agreements deal with key issues including confidentiality, custody and parental rights, prenatal obligations on the part of the surrogate, reimbursement of expenses.

No, we absolutely do not advise using an online surrogacy agreement or drafting one on your own. Taking this approach is far too risky given the important issues involved. This ever-changing law and each agreement needs to be tailored to your own particular details and circumstances. It is imperative to work with a fertility lawyer (one who specializes in surrogacy law and third party reproduction law) who can provide legal advice based on his/her experiences and up-to-date knowledge.

It is essential for the intended parents and surrogate to be represented by their own lawyers when entering into a surrogacy agreement. There are two main reasons for this: (1) conflict of interest for one lawyer to represent both the intended parents and surrogate as the parties have conflicting interests; and (2) the parties must fully be aware of all aspects of the agreement they are entering into, including their rights and/or interests being released and/or waived by the agreement.

Based on provincial legislation, the process of becoming a child’s legal parent(s) following surrogacy varies differs from province to province. The province of birth will determine the process. The process is not overly costly and can typically be completed within a couple of weeks. The process is straight forward and all ensure that the Intended Parents are, at law, the legal parents of the child.

The surrogacy contract typically covers:

• psychiatric or psychological pre-screening
• behavior during pregnancy
• issues governing expenses, insurance and reimbursements
• issues surrounding genetic testing of the fetus
• arrangements concerning custody of the child in the event that something happens to the intended parents (including injury, separation or divorce)
• the need for wills
• resolution of conflicts that may arise during or after the pregnancy
• securing the legal custody of the child to the Intended Parents
• abortion issues, anything you can possibly think of.

To reduce expenses, a Surrogacy Contract may be drafted with the input of all parties. Nevertheless, before the Surrogacy Contract is signed, the surrogate and/or partner are asked to seek independent legal advice to ensure they fully comprehend all aspects of the arrangement. Traditionally, the genetic and/or intended parents pay the surrogate’s legal expenses.

The entire process is usually completed within two to three weeks. The process includes obtaining independent legal advice.

It is common and recommended practice that a legal letter is prepared by a lawyer and addressed to the Obstetrician (or midwife) and also to the social worker/charge nurse at the Hospital in which the child is scheduled to be born.  This letter, which is signed by all of the signors to the Surrogacy Agreement, confirms to all parties that the Surrogate is not in actuality the mother of the child and confirms the rights of the Intended Parent(s) as such rights flow from the Surrogacy Agreement.  Specifically, the letter provides a detailed explanation of the situation at hand including that the child that is being born is actually the Intended Parent(s) baby, (if applicable), the Intended Parents are allowed in the delivery room, from the second of birth the rights of the Surrogate as related to the baby cease and the Intended Parent(s) are to make all decisions relating to the child and be the ones to take the baby home.

After the birth has taken place, legal documentation will need to be provided to the Court to obtain Orders declaring that the Intended Parent(s) are recognized, at law, to be “the parents of your child” and a simultaneous declaration that the Surrogate (and her partner if applicable), are not the parents of your child.  The law of the province where the birth occurs will apply.  Each province has a different process.  A lawyer should be consulted for proper details.