One out of six Canadians faces fertility issues. Infertility, combined with the increase in the number of families started by a single parent or same-sex couples, has resulted in a surge in the demand for egg donation and surrogacy. Despite the growing popularity of assisted reproduction, many legal misconceptions persist. Here are answers to FAQs on the legalities of surrogacy and egg donation.
What is egg donation?
Egg donation is a medical procedure. An egg donor’s ova (eggs) are retrieved from her ovaries by a surgical process and donated to another person for them to use for their own reproductive purposes.
Is egg donation legal in Canada?
Yes. Donating eggs is legal in Canada. Sperm donation is also legal in Canada.
What is surrogacy?
Surrogacy is when a woman agrees to carry and deliver a baby for an aspiring parent or couple. The surrogate enters into an agreement that she will carry the child for the intended parent(s). Depending on the situation, one, both, or neither of the intended parent(s) may contribute genetic material to the creation of the embryo.
Is surrogacy legal in Canada?
Yes. Surrogacy is legal in Canada but it is highly regulated. Canada’s Assisted Human Reproduction Act (“AHRA”) sets out the detailed rules and regulations relating to assisted human reproduction.
What types of surrogacies are there?
There are two types of surrogacies. The most common type is “gestational surrogacy,” where the surrogate is not biologically related to the child. The embryo is created using the sperm of the father or a sperm donor and the egg of the mother or an egg donor. The embryo is implanted in the uterus of the surrogate. The other type, which is called “traditional surrogacy,” uses the sperm of the intended father or donor to fertilize the surrogate mother’s egg. The surrogate mother is biologically related to the child. It is important to note that assisted reproduction laws do not apply if conception occurs by sexual intercourse. BC’s Family Law Act makes it clear that this is not surrogacy; instead, an adoption would need to be done after the child is born.
Can you pay an egg donor or surrogate in Canada?
Canadian law prohibits egg donation or surrogacy for profit. The AHRA makes it illegal to purchase sperm or ovum from a donor. It is also illegal in Canada to pay a surrogate for being a surrogate. That being said, the AHRA does allow a donor or surrogate to be reimbursed for some expenses. For example, it is legal to reimburse a donor or a surrogate for certain expenditures incurred in the course of donating or carrying the child to term. It is also legal to reimburse a surrogate for loss of income during the pregnancy if a qualified medical practitioner certifies in writing that work may pose a risk to the surrogate’s health or to that of the fetus. The Canadian rules and regulations on reimbursement are strict. Violation of those rules can result in penalties including fines and imprisonment. For that reason, it is highly recommended that intended parents speak to a lawyer who specializes in fertility law to be clear on what payments to a surrogate or donor are allowed.
Can a Canadian donate eggs in the States?
Yes. A Canadian woman can donate eggs in the US. Egg donation laws in Canada are very different from the laws in the United States. An egg donor can not be compensated for donating eggs in Canada but egg donor compensation is allowed for a Canadian resident who donates eggs in the States.
Do you need a written donor agreement?
In BC, donor agreements are recommended but not always necessary. This is because BC’s Family Law Act specifically states that a donor is not the child’s parent simply by reason of the donation. If the parties intend for the donor to also be a parent (e.g., where the donor is known; a friend or family member), then a donor agreement is legally required and must be signed before the child is conceived.
Do you need a written surrogacy agreement?
Yes. Surrogacy agreements are extremely important. These agreements set out the legal arrangements and expectations of everyone involved. Critical issues such as parentage (i.e., who will be listed as parents on the child’s birth certificate), reimbursement of expenses, and the role (if any) the surrogate will play in the child’s life should be set out in writing. In fact, BC’s Family Law Act requires that a written surrogacy agreement be made before conception. If an arrangement is made after the child has been conceived, then the birth mother—the woman who delivers the baby—will be considered the child’s parent.
Do you have questions about fertility law?
Whether you are a prospective parent, donor, or surrogate, you should consult with a lawyer before conceiving a child by assisted reproduction. Knowing your legal rights and responsibilities early on will make the process smoother and the experience more positive for everyone involved. At Valerie M. Little Law Corporation, we listen, we care, we understand and we are here to help you. Call us at 604-526-3333.