This article originally appeared in OBJ.ca on Monday, September 25, 2017.
Rapid medical advances, legal changes mean the landscape is shifting for intended parents and surrogates.
A surrogacy arrangement typically involves a few extra players who wouldn’t be present in a traditional pregnancy.
Fertility specialists, lab technicians, sperm or egg donors and a surrogate and her loved ones come on board to assist a family in creating a new life.
While it’s amazing to see how having a baby becomes a team effort, each new person who enters the equation increases the odds of a misunderstanding or miscommunication escalating into a dispute.
With so much at stake at such a delicate time, a lawyer becomes a key player in guiding an individual or couple through the surrogacy process, says Erin Lepine, the head of Nelligan O’Brien Payne LLP’s fertility law group.
She says the first question she typically receives from clients is, “Can I even do this?”
While the short answer is yes, it must be done in compliance with the law, which can be tricky to navigate at times.
Here are some of those recent developments, as well as some of the common legal issues, surrounding surrogacy in Canada.
One of the most significant components of Canada’s assisted reproduction law is a commitment to “altruistic” surrogacy.
This means that one cannot pay an individual to act as a surrogate or donate genetic material, which sets Canada apart from major international players including the United States and India.
Intended parents can only reimburse a surrogate or donor for costs incurred because of their arrangement. Examples include travel costs to go to doctor’s appointments, prenatal vitamins or maternity clothing. According to Ms. Lepine, this is one of the biggest issues she helps her clients face. She often explains it using a “but-for test.”
“But for the surrogacy arrangement, would you have incurred the expense? If you would have incurred the expense anyway, then it’s not reimbursable,” says Ms. Lepine. “It puts it into perspective. You’re paying rent or a mortgage already. Most people already have a gym membership and everybody’s already feeding themselves.”
In Canada, the maximum fine for failing to comply with the non-payment rule is $500,000 and can result in a maximum prison term of 10 years.
Changing parentage laws
In early 2017, the provincial government enacted The All Families Are Equal Act (Bill-28), which streamlined the process for parents in Ontario to claim parentage of children born through surrogacy.
In the past, intended parents had to go to court to be declared the legal parents of their children born via surrogacy. Under the new law, parents now have the option to register their child’s birth using the new streamlined process for children born via surrogacy, or request a declaration of parentage from the Court. Of course, the court process is the more costly of the two options:, but some parents may prefer it to the streamlined registration process.
In order to take advantage of the new streamlined birth registration process, the surrogate will be required to sign a document at least one week after birth relinquishing all parental rights to the child, the parties must have entered into a surrogacy agreement prior to conception, and all parties involved must have received independent legal advice prior to signing that agreement.
In January 2017, when Ontario’s law came into force, British Columbia was the only other province to have enacted similar regulations around assisted reproduction and parentage.
The implications of carrying another person’s child inside your body are complex and relatively new in the eyes of Canada’s legal system.
During a typical pregnancy, a woman makes health and lifestyle choices that are in the best interest of both herself and her baby. Not drinking alcohol, limiting one’s caffeine intake and leaving the task of cleaning the cat’s litter box to someone else are among the behaviours most pregnant women adopt for the safety of their child.
But how does this change when the child they’re carrying isn’t their own?
For Ms. Lepine, the most important part of her work with surrogates and intended parents is the drafting of a strong surrogacy agreement. This document outlines expectations on both sides, ensuring there are no surprises along the way.
One item enshrined in any well-drafted surrogacy agreement is the waiver of doctor-patient confidentiality. This allows for the surrogate’s doctors to discuss the intimate details of her pregnancy with intended parents – an infringement that all parties agree to before conception.
Ms. Lepine also encourages individuals to discuss and include in their agreement other important issues, even if they are unlikely to be enforced by the courts. For example in some surrogacy cases, as with any pregnancy, complications can arise where it is recommended the pregnancy be terminated. Under the Canadian Charter of Rights and Freedoms, however, you cannot force a woman to undergo an abortion – even if it was agreed to in a surrogacy agreement.
Given the intricacies of assisted reproduction in Canada, Ms. Lepine recommends that anyone interested in taking part in surrogacy – whether as intended parents, surrogates or donors – consult a fertility lawyer.
“I really like to work to protect my clients from the potential negative outcomes that could happen with these scenarios and limit the risk of vulnerability – for women, children and those with fertility issues,” she says.
The Assisted Human Reproduction Act is Canada’s leading piece of legislation in this area, though it works in tandem with provincial legislation surrounding health care, child welfare and privacy.
In October 2016, Health Canada began consultations with various stakeholder groups to update the AHRA, which had several sections taken out of force in 2012.
A report released in July outlines key policy proposals that are expected to bring clarity to the law.
The three main areas of focus are:
- The safety of donor ova and sperm;
- Enforcement of the AHRA;
- Best practices for reimbursement of surrogacy expenses.
What Can Nelligan O’Brien Payne do for you?
Our firm has both a family and fertility law group. This unique specialization allows the team to help client with all aspects of assisted reproduction, no matter what part they’re playing. For more information, contact our Family Law Group or Fertility Law Group.