August 18, 2014 By: Erin Lepine
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Surrogacy is an exciting new area of law, which has received global attention following a recent news story involving a baby born to a surrogate mother in Thailand. The baby was born with Down’s Syndrome, a heart condition, and other physical disabilities requiring medical attention. The intended parents of the child, an Australian Couple, reportedly left the baby with the surrogate mother in Thailand, taking his healthy twin sister back to Australia with them.

In light of the media coverage that was being received by this story, on August 6, 2014, I was invited by CBC Radio’s Ottawa Morning to speak about Canadian surrogacy laws, and the grey areas that surround them.

The outcome of a surrogacy arrangement depends on the existence of a surrogacy agreement, as well as the governing laws of the jurisdictions involved in the surrogacy. In Canada, surrogacy is mainly regulated through the Assisted Human Reproduction Act, which outlines who can act as a surrogate, and how surrogacy is to be handled in Canada. It is legal to enter into a surrogacy agreement in Canada; however a surrogate must be at least 21 years old. It is illegal to pay a surrogate for her services; however a surrogate can be reimbursed for her expenses. The risks in contravening this legislation can be severe, and result in fines of up to $500,000 and a prison term of up to ten years, or both.

Surrogacy agreements are complex documents which raise a considerable number of legal issues. There are a variety of provisions that should be laid out in an agreement. These include, but are not limited to:

  • specific expectations for the intended parents and for the surrogate in relation to the pregnancy and birth;
  • a reimbursement clause, that covers which expense will and will not be reimbursed, and how that reimbursement will take place should also be included;
  • specific expectations of who will be the parents for the child after birth;
  • clarification of what role, if any, the surrogate may play in the child’s life after birth;

This is only a small sample of the issues that a surrogacy agreement should address. If you are thinking of entering into a surrogacy agreement, you should discuss your options with a lawyer who has specific knowledge and experience advising clients on these types of agreements.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law