The legal status of family members, also referred to as filiation, in Canada is governed by the provinces/territories and not the federal government. As a result, there are variations in these laws from one province/territory to another within Canada. This can become complicated because Canada has ten provinces and three territories.
British Columbia, Alberta, Manitoba, Ontario, Quebec, Prince Edward Island, and Saskatchewan have developed clear and instructive legal processes and prerequisites for surrogacy arrangements, providing protection and stability for intended parents, surrogates, and the children born through surrogacy.
Here is a look at the laws, or lack thereof, in Canada by province and territory:
Alberta
In Alberta, surrogacy is governed by the Family Law Act 2003 and the Assisted Reproductive Technologies Act. At least one parent must be biologically related to the child. The following are some key laws and regulations related to surrogacy in Alberta:
Surrogacy Agreements
Surrogacy agreements are legally recognized in Alberta but are not enforceable in a court of law. This means that while parties can enter into a surrogacy agreement, they cannot use the courts to enforce the terms of the contract.
Parental Rights
In Alberta, the surrogate is considered the child’s legal mother at birth, even if she is not genetically related. The surrogate’s name appears on the birth registry. The intended parents must go through a legal process to establish their parental rights, such as obtaining a Declaration of Parentage or an Adoption Order. However, the process is fast in Alberta, and the court order is often received before the birth certificate is issued; therefore, the intended parent’s name can appear on the birth certificate.
Compensation
Alberta law allows for the reimbursement of the surrogate’s reasonable expenses related to the pregnancy, including medical costs, lost wages, and other reasonable out-of-pocket expenses. Commercial surrogacy is prohibited in Alberta – where a surrogate is paid for their services.
Medical and Psychological Assessments
The intended parents and the surrogate must undergo medical and psychological assessments to ensure they are physically and emotionally prepared for the surrogacy journey.
Legal Representation
It is highly recommended that you work with a lawyer experienced in reproductive law to navigate the surrogacy process in Alberta, including drafting and reviewing the surrogacy agreement and obtaining the necessary legal orders to establish parental rights.
Consent and Consent Withdrawal
Both the surrogate and the intended parents must provide informed consent in writing before the surrogacy process begins. Additionally, either party can withdraw consent before specific legal steps are taken, such as transferring the embryo to the surrogate.
Parental Responsibility and Support
The intended parents are legally responsible for the child’s care and support, even if they are not genetically related. The intended parents are also responsible for obtaining necessary court orders or legal documents to establish their parental rights and responsibilities.
Birth Registration
The intended parents are responsible for registering the child’s birth and obtaining a birth certificate with their names as the legal parents. This typically requires submitting the necessary documents and legal orders to the Vital Statistics office in Alberta, Canada
British Columbia
In British Columbia, surrogacy is regulated by the Family Law Act, the Adoption Act, and the Assisted Human Reproduction Act. The following are some fundamental laws and regulations related to surrogacy in British Columbia:
Surrogacy Agreements
Surrogacy agreements are legally recognized in British Columbia but are not enforceable. This means that while parties can enter into a surrogacy agreement, they cannot use the courts to enforce the terms of the agreement.
Parental Rights
In British Columbia, the surrogate is considered the child’s legal mother at birth, even if she is not genetically related. The intended parents must go through a legal process to establish their parental rights, such as obtaining a Declaration of Parentage or an Adoption Order.
Compensation
British Columbia law allows for reimbursing the surrogate’s reasonable expenses related to the pregnancy, including medical costs, lost wages, and other reasonable out-of-pocket expenses. Commercial surrogacy is prohibited in British Columbia.
Medical and Psychological Assessments
The intended parents and the surrogate must undergo medical and psychological assessments to ensure they are physically and emotionally prepared for the surrogacy journey.
Legal Representation
Working with a lawyer experienced in reproductive law to navigate the surrogacy process in British Columbia, including drafting and reviewing the surrogacy agreement and obtaining the necessary legal orders to establish parental rights, is highly recommended.
Consent and Consent Withdrawal
The surrogate and the intended parents must provide informed consent in writing before the surrogacy process begins. Additionally, either party can withdraw consent before certain legal steps are taken, such as transferring the embryo to the surrogate.
Parental Responsibility and Support
The intended parents are legally responsible for the child’s care and support, even if they are not genetically related. The intended parents are also responsible for obtaining necessary court orders or legal documents to establish their parental rights and responsibilities.
Birth Registration
The intended parents are responsible for registering the child’s birth and obtaining a birth certificate with their names as the legal parents. This typically requires submitting the necessary documents and legal orders to the Vital Statistics office in British Columbia, Canada.
Manitoba
In Manitoba, Canada, surrogacy is governed by The Family Maintenance Amendment Act 2021. The following are some key laws and regulations related to surrogacy in Manitoba:
- The requirement of a pre-conception surrogacy agreement must include the following provisions:
- The surrogate is the birth parent.
- Upon birth, the surrogate agrees not to be the child’s parent.
- Intended parent(s) agree to be the child’s parent(s)
- A surrogacy agreement is not enforceable, but in an application for parental rights, it may be used as evidence of the intended parents’ intentions to be a parent and the surrogate’s intention not to be a parent.
- All parties must receive independent legal advice; a certificate (verifying the advice received) must be attached to the signed agreement.
- No sooner than 2 days after birth, the surrogate must consent in writing to the intended parents applying to the court for an order declaring them the parents and the surrogate not to be a parent. The parents must have the child in their custody before applying for such an order, and it must be made no later than 30 days after birth.
- If the surrogate changes her mind about relinquishing the child, the court will decide the case based on the child’s best interests.
- There must be agreed-upon processes for surrendering the child to the intended parents.
- Manitoba, Canada, provides an expedited process to obtain a court order declaring the intended parents the child’s legal parents.
- The registrar or clerk of the court must file with the office of the Director of Vital Statistics a statement for every declaratory order of parentage made under this law.
New Brunswick
New Brunswick, Canada, does not have specific legislation governing surrogacy. However, the courts have generally considered surrogacy arrangements valid and recognized by common law principles and legal precedents. Here are some key aspects of surrogacy in New Brunswick:
- At least one parent must be genetically related to the child.
- If the surrogate changes her mind, her name will remain on the birth certificate. The court will decide custody based on the best interests of the child.
- The surrogate’s name will appear on the original birth certificate, although technically, this birth certificate is not issued.
- An application can be brought to the court to amend the birth certificate to name the intended parents as the legal parents.
- The court order will remove the surrogate’s name from the birth certificate and replace it with the intended parents.
Newfoundland and Labrador
Newfoundland and Labrador have yet to have specific legislation governing surrogacy. However, surrogacy arrangements here are generally considered valid and recognized by the courts based on common law principles and legal precedents.
- The surrogate’s name will appear on the original birth certificate.
- An application can be brought to the court to amend the birth certificate to name the intended parents as the legal parents.
- At least one parent must be genetically related to the child.
- If the surrogate changes her mind, her name will remain on the birth certificate. The court will decide custody based on the best interests of the child.
Nova Scotia
Nova Scotia, Canada, has yet to have specific legislation governing surrogacy. However, under the Birth Registration Regulations made under section 51 of the Vital Statistics Act 1989, there is a section about surrogacy:
- The surrogate’s name will appear on the original birth certificate.
- The intended parents initiated and planned the surrogacy arrangement before conception.
- The surrogate does not intend to be the child’s parent.
- At least one of the intended parents is genetically linked to the child.
- The intended parents can apply for a court order declaring them the child’s parents.
- Upon receipt of the court order, the Registrar of Birth must amend the birth registration outlined in the order.
Ontario
The handling of surrogacy in Ontario underwent a significant transformation with the implementation of the All Families are Equal Act in 2016. This Act acknowledges the parental status of all parents, irrespective of their sexual orientation, and affords enhanced transparency and safeguards for all parties engaged in a surrogacy agreement.
- All parties must sign a surrogacy agreement.
- Surrogacy agreements are unenforceable but can be used as evidence of the parties’ intent.
- All parties must receive independent legal advice before signing the agreement.
- There can be at most four parties to the agreement.
- Unless specified in the surrogacy agreement, parentage rights are shared equally between the surrogate and the intended parent(s) until the child is seven days old.
- If a dispute over parentage arises, the court will decide what is in the child’s best interest.
- All parties must meet with a healthcare advisor after the child’s birth. The advisor should encourage open communication between the parties without judgment. The healthcare provider must confirm the existence of a surrogacy agreement, that all parties received independent legal advice, that no more than four parties are involved, and that a child was conceived through assisted reproduction.
- The surrogate can consent in writing no earlier than seven days after birth to relinquish her entitlement to parental rights. Such an application to the court must occur within the 1st year of birth.
- Intended parents can apply for a court order to recognize the intended parents as the child’s legal parents.
- If the court finds, on a balance of probability, that the person is the child’s parent, it can make such a declaration.
- The registrar or clerk of the court must file with the office of the Director of Vital Statistics a statement for every declaratory order of parentage made under this law.
Prince Edward Island
As of March 1, 2021, Prince Edward Island enacted a new law – Children’s Law Act – which allows for a Statutory Declaration of Parentage to recognize the intended parents on the birth certificate.
- A surrogate is considered the child’s legal parent upon birth.
- A signed surrogacy agreement entered before birth is required.
- Surrogate agreement is not enforceable but may be used as evidence of the parties’ intent.
- The surrogate agreement must contain a clause that the parties intend that the surrogate will not be the legal parent upon birth and that the intended parents are the legal parents.
- All parties must receive independent legal advice before signing the surrogate agreement.
- The surrogate must provide written consent to relinquish the child to the intended parents after the birth.
- Intended parents can apply to court after birth to be declared the legal parents. The court may request parentage testing.
- The registrar or clerk of the court must file with the office of the Director of Vital Statistics a statement for every declaratory order of parentage made under this law.
Quebec
Quebec’s surrogacy laws have seen significant updates with the adoption of Bill 12 on June 6, 2023. Effective March 6, 2024, children born through surrogacy agreements signed after this date can now be recognized as belonging to both intended parents under certain conditions. To streamline the process, a new method has been established, simplifying the legal procedure. A bond of filiation is prepared by a lawyer or notary and signed by all parties involved, including the surrogate and intended parents, before a notary. This document is then notarized and registered. Additionally, the surrogate must provide written consent, either before a notary or before two witnesses, affirming the establishment of the filiation bond with the intended parents and the absence of such a bond between herself and the child. Subsequently, the notarized act and written consent are submitted to the Director of Civil Status for review. Upon satisfaction with the documentation, the Director of Civil Status issues a birth certificate for the child, bearing the names of the intended parents.
- Only altruistic surrogacy is permitted. However, expenses such as travel, legal, maternity clothing, childbirth preparation courses, health and life insurance, as well as compensation for lost wages in the event of pregnancy complications can all be reimbursed.
- Anyone who compensates a surrogate beyond what is legally permitted will be guilty of a criminal offense and liable to a fine of up to $500,000 and imprisonment for a term not exceeding 10 years.
- Surrogate must be over the age of 21 years. and must have been domiciled in Quebec for at least one year.
- The intended parents must have been domiciled in Quebec for at least one year.
- Reimbursement of expenses and lost income is permitted.
- Participants can be single, married, or in a relationship both heterosexual or homosexual.
- All parties must meet with a mental health professional, midwife, or sexologist before the birth. This information. This information meeting will focus on the psychosocial implications of the surrogacy project and the ethical issues it involves. The intended parents and the surrogate mother must attend separate meetings. A certificate of attendance will be provided at the end of the meeting, which must be kept.
- A surrogacy agreement must be signed by all parties before conception in the presence of two disinterested witnesses, with documentation indicating the date and place of consent.
- If the surrogate terminates the surrogacy agreement, the intended parents may not claim reimbursement for the amounts they paid to the surrogate.
- The intended parent cannot withdraw from the contract after entering the agreement.
- The surrogacy agreement must state that the surrogate intends to relinquish any parental rights at birth and consents to the intended parents’ filing to establish their legal rights.
- The surrogate can abort the pregnancy or change her mind and keep the baby and will be immune from any lawsuit by the intended parents.
- The intended parents are responsible for supporting the child when the contract is signed.
- After birth, the surrogate must confirm in writing that she does not want to be the child’s mother. This consent must occur no earlier than seven days after birth and no later than thirty days after delivery.
- Upon receiving the appropriate documents, the registrar of civil status will issue the birth certificate with the names of the intended parents, thereby making them the child’s legal parents.
- The child has the right to know his genetic beginnings. It is the responsibility of the child’s parent’s responsibility to inform the child that he was born of procreation involving the contribution of a third person.
- The Bill also adds to the Charter of Human Rights and Freedoms and gives the child the right to learn about their origins.
Northwest Territories
Northwest Territories, Canada, does not have specific legislation or regulations regarding surrogacy. Therefore, surrogacy here would be governed by general family law principles and common law.
The surrogate’s name will appear on the original birth certificate, and the intended parents can apply to the court for a parentage declaration. However, surrogacy is uncommon in the Northwest Territories, and how the court decides on surrogacy cases is unpredictable. The adoption route may be the best option.
Saskatchewan
The Children’s Law Act 2020 incorporates and builds upon the changes seen in other provinces, making it one of the country’s most advanced and progressive pieces of parentage legislation. It received Royal Assent from the Saskatchewan Legislature on March 16, 2020. It was set to come into force pending the approval of necessary regulations and the finalization of the new Federal Divorce Act. This legislation came into effect on March 1, 2021.
Traditional surrogacy (where the child is conceived using the surrogate’s eggs) and gestational surrogacy (where the surrogate has no genetic connection to the child she carries) are recognized, but the surrogacy arrangements must be altruistic.
A surrogacy relationship will be recognized if:
- A child is conceived with the assistance of a surrogate.
- The surrogate has entered a pre-conception agreement with the intended parent or parents.
- The child is conceived through assisted reproduction.
- The surrogate relinquishes their entitlement to parentage after the child’s birth.
It is important to note that a surrogacy agreement, although not legally enforceable, can still prove the party’s intentions. If the agreement is signed before conception and the surrogate voluntarily relinquishes her rights after birth, the intended parents would become the child’s legal parents according to the agreement. However, in the rare scenario where the surrogate refuses to renounce her rights, the court would determine the child’s parentage based on the child’s best interests.
An interesting provision in this new law is that it allows a child to have up to 4 parents:
Multi-Parent Agreements. Two to four people can be considered the parents of a child where the intended parents are parties to a pre-conception parentage agreement. Multi-parent agreements can be used when a donor wants to retain some decision-making responsibility or parenting time or where more than two adults wish to co-parent children together. In such a case, two to four parties may execute a parentage agreement to determine the parentage of a child. Generally, the egg providers and their spouses must be parties to the agreement. These agreements must be executed pre-conception. The child’s birth certificate can be amended to record the parents under the agreement.
While the Children’s Law Act should provide greater flexibility to individuals as they structure and plan their families, the changes will also allow for complex and novel parental arrangements.
Nunavut (Territory)
In Nunavut, Canada, no specific legislation or regulations deal with surrogacy, which means that the general principles of family law and common law would apply to any surrogacy arrangements.
As such, the surrogate’s name would be included on the original birth certificate, and the intended parents could seek a parentage declaration through the court if necessary.
Yukon (Territory)
Surrogacy in Yukon is not subject to specific legislation or regulations; thus, the general principles of family law and common law would apply.
This means the surrogate’s name would be listed on the original birth certificate, and the intended parents would need to seek a parentage declaration through the court. However, it is worth noting that surrogacy arrangements are rare in Yukon, so the outcome of any court request remains to be determined.
Future Legal Developments in Canada
The laws regarding surrogacy in Canada are undergoing swift changes in multiple Provinces and Territories, with several legislative measures currently awaiting approval. To ensure a successful surrogacy experience in Canada, you are strongly advised to seek the guidance of a licensed attorney in the specific province or territory you are considering.
