The process of having a child with the assistance of a surrogate is complicated, involving many different social, medical, and legal considerations. After undergoing required medical screening, locating willing donors if additional genetic material is required, and finding a person who is willing to act as a surrogate on an altruistic basis, there are two main legal processes to keep in mind:
- the Surrogacy Agreement
- the Birth Registration and Declaration of Parentage
A Surrogacy Agreement must be executed prior to attempting conception, and usually the intended parents, the surrogate, and (if applicable) the surrogate's spouse are all parties. The Agreement must contain the names and addresses of the parties and confirmation that all parties are over the age of 18. The agreement must state that the parties intend to conceive a child through assisted reproduction, the surrogate (and the surrogate's spouse) do not intend to be parents, and the intended parents do intend to be parents. All parties require independent legal advice, which means everyone will have to speak to their own lawyer.
Such agreements also cover health and medical care for the surrogate and child during pregnancy, protection from legal liability and child support obligations, and confidentiality. The agreements also usually cover reimbursement - it is illegal to compensate a surrogate in Canada, but it is permissible to reimburse a surrogate for expenses incurred in relation to a surrogacy, for example health and medical costs. It is important that such expenses are well documented before being reimbursed.
Birth Registration and Declaration of Parentage
A Surrogacy Agreement is not enough to confirm parentage following the birth of the child. However, Surrogacy Agreements can be used as evidence in support of an application for a declaration of parentage, provided they meet legislated requirements. When the child is born in Saskatchewan, the surrogate is automatically included on the Registration of Live Birth, along with up to two additional parents. To obtain a declaration from the court that the surrogate is not the child's parent, the surrogate must sign a consent form three days after the birth of the child confirming she is not the child's parent. A consent order signed by the surrogate and spouse may also be required. The Intended Parents can then apply to the court for a declaration confirming they are the child's parents.
Once the order is granted, it can be filed with Vital Statistics Saskatchewan, who will amend the child's Registration of Live Birth and on request issue a Birth Certificate with the Intended Parents as the child's parents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.