Redefining Parenthood in Fertility and Surrogacy Law
January 20, 2024
Over the years, the notion of the North American nuclear family has shifted as individuals are prolonging their education and professional careers to substitute marriage and parenthood. As a result, we have seen a rise in the diversity of family structures, such as step-parenting, adoption, and emerging innovations in family planning and reproduction, such as surrogacy.
Surrogacy is the process of a woman carrying a child for aspiring parents. The two current types are: Gestational and Traditional. The most common type is arguably gestational surrogacy, which entails that the baby is not biologically related to the surrogate mother. On the other hand, traditional surrogacy would involve artificially inseminating a surrogate with the biological father’s sperm. Therefore, the baby would be related to the surrogate mother and biological father.
Unlike what many people may believe, navigating reproduction and fertility options can be complicated, but where it can be valuable to turn to lawyers trained to assist in navigating these processes. In Canada, surrogacy is legal and federally regulated under the Assisted Human Reproduction Act (2004). However, provincial laws also play a factor as the validity of each contract and establishing parenthood is governed provincially, such as Quebec's failure to recognize surrogacy contracts under the Quebec Civil Code.
The Assisted Human Reproduction Act (2004) sets the standards for conceptual definitions, standards and regulations, and prohibitions, among other legal perimeters. For example, the legislation enforces that surrogates must be at least 21 years old, consent to the process, and cannot be paid for their services as a surrogate.
A surrogacy lawyer can assist with navigating the process and fertility laws surrounding a surrogacy agreement. To proceed with a surrogate, the parties are required under Canadian law to establish a surrogacy agreement. It also states that the surrogate receives independent legal advice, while the aspiring parents often retain their own lawyer to negotiate the contract.
In the surrogacy agreement, one could expect negotiations on the time period of the pregnancy, parental rights, the child’s contact with the surrogate mother, reimbursements for expenses relating to the surrogacy, etc. Nevertheless, though all aspects of the contract may not be enforceable, they aid in resolving any legal disputes between the parties and establishing guidelines.
Among the importance of retaining a lawyer throughout the surrogacy process is the establishment of declaring parentage and non-parentage or, in other words, recognizing the legal parents. Due to provincial laws and regulations, the parental rights will depend on the province the child is born in and their genetic link to the aspiring parents and the surrogate. A lawyer specializing in fertility law can provide guidance throughout this process, advising clients on their rights, responsibilities, and the necessary legal steps to secure parental rights effectively.
Surrogacy's implications for Canada's future and understanding one's rights in this context present complex considerations. Emerging technology for human reproduction introduces both controversy and opportunity. While some view surrogacy as unnatural, others are witnessing a growing acceptance of surrogacy as an alternative for many individuals navigating family planning.
In light of the shifting dynamics in Canadian families and the increasing interest in alternative childbearing options, such as surrogacy, it becomes critical to consider the implications of human reproduction and individual rights. However, there is a noticeable lack of comprehensive data available to the public to fully understand the impact of surrogacy on Canada's future as significant limitations persist in data collection, management, and accessibility. Access to accurate and reliable information would facilitate informed decision-making regarding fertility medicine, social policy, and the law. Thus, it is essential to address the gaps in information to ensure that individuals navigating surrogacy and fertility options have the necessary knowledge to make informed choices for themselves and their families.