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How does a surrogacy agreement work?


Almost one in six couples in Canada will have infertility issues when trying to start a family. Fertility law is an emerging branch of family law. Family lawyers can assist clients with fertility law by drafting Sperm Donor Contracts and Surrogacy Agreements. In a Sperm Donor Contract a male agrees to provide another couple with semen to allow them to conceive a child. In a Surrogacy Agreement, a female agrees to bear and give birth to another couple's child (usually conceived "in vitro"). For obvious reasons, surrogacy agreements can have far more implications for the "donor".

Agreeing to become a surrogate mother has ramifications on all aspects of a woman's life. For anyone having had a child, which is required by fertility clinics if a person wants to become a surrogate, a pregnancy can have short term and long term effects on one's body, emotions and life in general. While becoming a surrogate is a wonderful gift a person can give another, there are legal, personal and medical considerations to think about. A fertility clinic will guide the surrogate in this process and has a strict screening process including a medical screening and a psychological assessment. Further, the procedure itself will not commence without the parties having negotiated and concluded a Surrogacy Agreement.

A Surrogacy Agreement is a contract concluded between at least 2 parties whereby a woman (the gestational carrier) agrees to be implanted with an embryo and to carry a child for the purpose of surrendering custody of the child/ren upon birth. The genetic parents are also parties to the Agreement as is the spouse of the gestational carrier.

The contract is quite detailed as it lists the procedure (who's ovum and sperm will be used), how many implantations will be carried out, how many ovums will be implanted at the same time, what happens if there are complications with the pregnancy, what happens if there are multiple births, etc.. . Another topic that is often discussed and agreed to in writing is what the surrogate can and can't do during the pregnancy including drinking coffee; smoking and even having sexual relations before and during the pregnancy.

The contract will also contain a release of the surrogate's parental rights toward the child/ren and obligation to pay child support. It is important to note that this aspect of the contract has not been tested before Canadian courts yet, and may not be enforceable.

The biggest misconception surrounding the surrogacy process is the payment for the service. It is believed that a surrogate can be compensated for her role. However, it is not permitted in Canada to pay a woman for the surrogacy. The law clearly sets out that no person can purchase any reproductive material in Canada such as sperm, ovum, embryos or gametes. This also extends to surrogates. The surrogate can only be reimbursed for expenses which are supported by receipts such as for clothing, special diet, medical expenses, transportation costs, etc...

Should you have any questions about fertility law, contact one of our qualified family lawyers.

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