Surrogacy Laws In Canada

Surrogacy Laws in Canada - map

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. This can become complicated because Canada has ten provinces and three territories. 

 

British Columbia, Alberta, Manitoba, Ontario, 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. With the anticipated endorsement of current legislation in 2023, Quebec could also become a member of this list. (You can find further information on this legislation in the Quebec section below.)

 

 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.

 

 

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 must be 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.

 

 

Manitoba

In Manitoba, surrogacy is governed by The Family Maintenance Amendment Act 2021.  The following are some key laws and regulations related to surrogacy in Manitoba:

 

  • Requirement of a pre-conception surrogacy agreement and must include the following provisions:
    • 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 that 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 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 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 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:

 

  1. The surrogate’s name will appear on the original birth certificate.
  2. The intended parents initiated and planned the surrogacy arrangement before conception.
  3. The surrogate does not intend to be the child’s parent.
  4. At least one of the intended parents is genetically linked to the child.
  5. The intended parents can apply for a court order declaring them the child’s parents.
  6. 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.

 

  1. All parties must sign a surrogacy agreement.
  2. Surrogacy agreements are unenforceable but can be used as evidence of the parties’ intent.
  3. All parties must receive independent legal advice before signing the agreement.
  4. There can be at most four parties to the agreement.
  5. 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.
  6. If a dispute over parentage arises, the court will decide what is in the child’s best interest.
  7. 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.
  8. 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.
  9. Intended parents can apply for a court order to recognize the intended parents as the child’s legal parents.
  10. If the court finds, on a balance of probability, that the person is the child’s parent, it can make such a declaration.
  11. 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.

 

  1. A surrogate is considered the child’s legal parent upon birth.
  2. A signed surrogacy agreement entered before birth is required.
  3. Surrogate agreement is not enforceable but may be used as evidence of the parties’ intent.
  4. 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.
  5. All parties must receive independent legal advice before signing the surrogate agreement.
  6. The surrogate must provide written consent to relinquish the child to the intended parents after the birth.
  7. Intended parents can apply to court after birth to be declared the legal parents. The court may request parentage testing.
  8. 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 has no law regarding surrogacy currently.  The surrogate is the legal mother, and only adoption can change her status.  In 2022, Bill 2 was introduced to the Quebec legislature as part of the government’s family law reform.  Bill 2 was hailed as “a remarkable initiative,” and the Chambre des notaires du Quebec stated: “Today’s society is composed of different family models …and the bill rebalances the legal protections of everyone involved.”

 

However, the government needed more time before the session closed to evaluate Bill 2. Therefore, it removed the section regarding surrogacy from the Bill and put it into Bill 12 to ensure that the remainder of Bill 2 would pass in 2022.  Bill 12 has been tabled for discussion in the 2023 legislative session.  If Bill 12 is passed in 2023, it will create a legal framework for surrogacy in Quebec.  Until the passing of this new Bill, surrogacy is governed by the Civil Code of Quebec and is only permitted in altruistic, non-commercial arrangements.

 

  1. Only altruistic surrogacy is permitted.
  2. Surrogate must be over the age of 21 years.
  3. Reimbursement of expenses and lost income is permitted.
  4. All parties must meet with a mental health professional before the birth.
  5. A surrogacy agreement must be signed by all parties before conception.
  6. 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.
  7. 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.
  8. The intended parents are responsible for supporting the child when the contract is signed.
  9. After birth, the surrogate must confirm in writing that she does not want to be the child’s mother. This consent cannot be given, but it must occur no earlier than seven days after birth and no later than thirty days after delivery.
  10. The Bill also adds to the Charter of Human Rights and Freedoms and gives the child the right to learn about their origins.

 

 

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:

 

  1. A child is conceived with the assistance of a surrogate.
  2. The surrogate has entered a pre-conception agreement with the intended parent or parents.
  3. The child is conceived through assisted reproduction.
  4. 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.  Suppose a parentage agreement is validly executed and meets the Children’s Law Act requirements.  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. 

 

 

Northwest Territories

Northwest Territories 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.

 

 

Nunavut (Territory)

In Nunavut, 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.

 

The laws regarding surrogacy are undergoing swift changes in multiple Provinces and Territories, with several legislative measures currently awaiting approval. To ensure a successful surrogacy experience, you are strongly advised to seek the guidance of a licensed attorney in the specific province or territory you are considering.

 

 

Author: Karen Synesiou, Infertility Portal, Inc.

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