Trials and Tribulations of Practicing Fertility Law

Canadians have misconceptions about assisted human reproduction, surrogacy and fertility, Winnipeg lawyer Robynne Kazina informed seminar participants at Robson Hall on Oct. 23, 2019. Many believe that surrogacy is illegal, are unaware of embryo donation, and believe surrogates would want custody of the baby. Kazina pointed out that Canada is one of the preferred destinations for international surrogacy. As a result, “there is a shortage of surrogates. Some people go to the U.S. but it is cost-prohibitive there.”

Third-party reproduction includes surrogacy and embryo, sperm or egg donation. Surrogacy has two main types – traditional and gestational. In traditional surrogacy, the embryo is created with the surrogate’s egg through insemination or in vitro fertilization, thus the surrogate mother is a genetic contributor. In gestational surrogacy, there is no genetic contribution from the surrogate mother as the embryo is created either through the intended parents’ sperm and egg or donated sperm and egg. Those using assisted reproduction are same-sex couples, singles and heterosexual couples dealing with fertility issues. Many surrogacy arrangements begin through social media. Assisted human reproduction procedures are expensive, with the total cost ranging from $60,000 to $100,000.

Few lawyers specialize in the emerging area of fertility law – most practice in Ontario. The fertility lawyer’s role involves drafting donor and/or surrogate agreements, ensuring intended parents are in compliance with the Assisted Human Reproduction Act, and assisting with parentage rights after birth. The lawyer is also saddled with the task of clarifying and resolving ethical issues between intended parents and the surrogate mother. Some of the legal issues fertility lawyers deal with are egg and sperm donation, surrogacy arrangements, custody and consent issues and, crucially, parentage and citizenship rights. Parentage recognition in Canada is complicated because it is governed by provincial laws. In Manitoba, birth registration does not confer parentage. The law recognizes only biological or adoptive parentage, so a donor may be legally considered a parent to a surrogate child. On the contrary, in Ontario a donor is not a parent after donating through assisted human reproduction where there is a preconception agreement. It is important for intended parents to understand the laws of the intended province of birth, as well as immigration laws for those whose surrogate or surrogacy procedure is abroad. In some instances, the child has to be adopted by the intended parents. It is advisable for intended parents to seek legal advice prior to commencing the surrogacy process. Due to the lack of clarity on parentage, donation by sexual intercourse is not advisable because the donor may be subject to child welfare and maintenance suits in the future.

Assisted human reproduction legal documentation typically covers all possible scenarios, including abortion, genetic testing, dietary restrictions, selective reduction of embryos and confidentiality. It is not unusual for disputes to arise between intended parents and surrogates or donors. Most disputes involve embryo custody or donor consent, with most disputes settled out of court.


What happens in a scenario where the surrogate wants custody?

Custody claims are more likely in traditional surrogacy. The court will consider the matter on its merits but consideration will be given to the best interests of the child.

Is there any form of compensation?

By Canadian law, surrogacy is altruistic and as such the surrogate is only entitled to reimbursement of out-of-pocket expenses. The law states the nature of permissible reimbursement and the surrogate agreement typically sets out the specific items for which the surrogate mother is entitled to reimbursement.

What is the aim of surrogacy counselling?

This is done to ensure the parties understand the legal and ethical issues related to surrogacy. For example, it is important for the surrogate to agree to relinquish custody.

Are surrogacy agencies regulated?

No, but they are required to comply with the Assisted Human Reproduction Act.

Legal Regulation of Assisted Human Reproduction

In 2016, 50 per cent of children born to surrogate mothers in British Columbia were registered  for non-resident intended parents, University of Manitoba law Prof. Karen Busby said. Why is Canada a preferred international surrogacy destination?

Canada is one of five jurisdictions that permit international surrogacy, along with Greece, Ukraine, Georgia and some American states. “Most countries prohibit surrogacy and where it is not prohibited, international surrogacy is prohibited,” Busby said.

Status issues also play a role in Canada’s popularity:

  • anti-discrimination laws guarantee protection for intended parents and surrogate mothers;
  • parentage recognition can be expedited; and
  • Canadian citizenship is conferred on children born in Canada.

Another pull-factor relates to finances. Intended parents are attracted to Canada because health is publicly funded, making the cost of giving birth less expensive compared to the U.S. Limited income recovery for surrogate mothers is also allowed in Canada. The quality of services available in Canada is another major incentive and Canada has a pool of well-informed, healthy surrogates.

Should international surrogacy be of concern to Canadians? Busby said some clinics and hospitals have mechanisms for recovering health-care expenses from international intended parents but this is not common. Research points to exploitation of surrogates in India but not in the U.K. and U.S., so surrogacy may not be exploitative of women in western countries.

What about cross-border surrogacy? Although surrogates may be secretly receiving offshore payment for acting as surrogates, the major reason surrogates prefer cross-border surrogacy is to avoid being micromanaged by the intended parents.

Busby said Canada could consider imposing residency restrictions on intended parents and level the playing field for Canadian intended parents by allowing them to financially compensate surrogates who might otherwise receive offshore payments from foreign intended parents.

Busby slides

Listen to podcasts from seminars in this series.