A surrogacy agreement in Canada is a legally binding agreement designed to outline the rights, responsibilities, and expectations of the parties involved — namely, the Intended Parents and the Surrogate (and partner, if applicable). Canadian law prohibits compensating Surrogates for their services but allows for the reimbursement of reasonable expenses incurred during the surrogacy journey.
Below are the key issues typically covered in a surrogacy agreement in Canada:
1. Parties Involved
Identifying the Parties: The agreement will identify the Intended Parents, the Surrogate, and any other relevant parties, such as ova or sperm Donors (if applicable), as well as their legal rights and obligations under Canadian law.
2. Intended Parent Rights and Responsibilities
Legal Parentage: The agreement will detail the process by which the Intended Parents will become the legal parents of the child after birth. In Canada, the Intended Parents will be recognized as the legal parents upon the child’s birth, regardless of the Surrogate’s biological connection to the child.
Decision-Making: This section clarifies who will make key decisions about the pregnancy and childbirth, particularly if complications arise (e.g., medical decisions, birth plan preferences).
3. Surrogate’s Rights and Responsibilities
Medical Treatment and Care: The agreement outlines the Surrogate’s responsibilities to adhere to medical instructions, attend prenatal appointments, and follow a healthy lifestyle to ensure a safe pregnancy.
Lifestyle Restrictions: As part of the agreement, the Surrogate may agree to follow certain health and wellness guidelines during the pregnancy, such as abstaining from alcohol, smoking, and recreational drugs, as well as limiting high-risk activities.
Medical Insurance: The agreement will specify which party will cover the Surrogate’s medical insurance and health-related expenses during the pregnancy, ensuring that the Surrogate has adequate coverage.
Behavior During Pregnancy: The Surrogate agrees to follow recommended health guidelines and may also have to confirm that she will only undergo the medical procedures necessary for the pregnancy (e.g., avoiding unnecessary surgeries, medications, or treatments without consulting the Intended Parents).
4. Pregnancy and Birth Details
Embryo Transfer and IVF Process: The agreement explains the method of conception, typically through in vitro fertilization (IVF), and clarifies the medical steps, such as the transfer of embryos, which may be created using the Intended Mother’s ova or a Donor’s ova and the Intended Father’s sperm or a Donor’s sperm.
Miscarriage, Abortion, or Medical Complications: The agreement addresses the steps to be taken in case of miscarriage, medical complications, or the need for an abortion. Canadian law provides specific provisions for medical and therapeutic abortion decisions. The Intended Parents may have a say in the decision if it involves the health of the fetus or the Surrogate.
Birth Plan: The agreement may specify the Intended Parents’ preferences regarding the birth plan, such as their desire to be present during the birth, their role during delivery, and any other preferences regarding the birth process.
5. Reimbursement of Expenses (in Canada)
Reimbursement of Expenses: In Canada, Surrogates are prohibited from being compensated for their services. However, reasonable reimbursement for expenses incurred during the surrogacy process is allowed. The agreement outlines the types of expenses that will be reimbursed, such as:
Medical costs (e.g., IVF, prenatal care)
Travel expenses related to surrogacy (e.g., transportation, accommodations)
Net lost income if the Surrogate has to take time off work for pregnancy-related appointments or issues
Legal fees for both the Surrogate and Intended Parents
Other out-of-pocket costs directly related to the pregnancy
The agreement also addresses the timing and method of reimbursement to ensure that the Surrogate’s expenses are covered in a timely manner.
6. Confidentiality and Privacy
Privacy and Confidentiality: The agreement typically includes a confidentiality clause, ensuring that both the Surrogate and the Intended Parents respect each other’s privacy and that no personal information will be disclosed without consent. This includes protecting any personal details about the pregnancy and the identities of the parties involved.
Public Disclosure: The agreement may specify whether or not the surrogacy arrangement can be disclosed publicly or to others outside of the involved parties. Many Surrogates and Intended Parents prefer to keep the surrogacy private, but the terms can be agreed upon in the agreement.
7. Parental Rights
Legal Parentage: Under Canadian law, the Intended Parents are legally recognized as the child’s parents upon birth, regardless of the Surrogate’s biological relationship to the child. This is explicitly stated in the surrogacy agreement.
Birth Certificate: The agreement will outline how the birth certificate will be handled, specifying that the Intended Parents will be listed as the legal parents, and the Surrogate will have no parental rights after birth.
8. Dispute Resolution
Conflict Resolution: The agreement may outline the steps to resolve any disagreements or disputes that arise during the surrogacy process. This can include options such as mediation or arbitration before pursuing litigation.
Jurisdiction: The agreement specifies which jurisdiction’s laws will govern the surrogacy agreement, usually based on where the Intended Parents or the Surrogate reside.
9. Termination of the Agreement
Conditions for Termination: The agreement will outline the circumstances under which the surrogacy agreement may be terminated by either the Surrogate or the Intended Parents, such as in cases of medical complications or changes in personal circumstances.
Consequences of Breach: The agreement specifies what happens if either party breaches the terms of the agreement, including how liability for damages will be determined.
10. Health and Well-Being of the Baby
Fetal Health and Medical Decisions: The agreement will specify how decisions regarding the health of the fetus will be made, particularly if there are complications, abnormalities, or medical concerns during the pregnancy.
Post-Birth Care: This clause clarifies that the Intended Parents are responsible for the care of the baby immediately after birth, and the Surrogate has no parental responsibilities or rights after the child is born.
11. Parental Contact During Pregnancy
Interaction During Pregnancy: This section outlines how much interaction the Intended Parents and Surrogate will have during the pregnancy. It may include regular updates, visits, and shared experiences, with clear boundaries to ensure a respectful relationship.
12. Post-Birth Considerations
Relinquishment of Parental Rights: The Surrogate will agree to relinquish any parental rights once the child is born, ensuring that the Intended Parents are recognized as the legal parents.
Future Contact with the Child: The agreement may include provisions for any ongoing communication or relationship between the Surrogate and the child, such as receiving updates on the child’s well-being.
13. Miscellaneous Provisions
Governing Law: The agreement specifies that it will be governed by the laws of the province or territory in which the Intended Parents or Surrogate reside.
Amendments: It also includes a provision for how the agreement can be amended if necessary, with mutual consent from both parties.
Severability: This ensures that if one part of the agreement is deemed unenforceable, the rest of the agreement remains intact.
Conclusion
A surrogacy agreement in Canada is a crucial legal document that protects the rights of both the Intended Parents and the Surrogate. It addresses various aspects of the surrogacy process, including medical care, expenses, legal parentage, and post-birth arrangements, while adhering to Canadian laws that prohibit Surrogate compensation but allow for expense reimbursement. This agreement is designed to avoid disputes and ensure that all parties have a clear understanding of their roles and responsibilities throughout the surrogacy journey.
It is highly recommended that both the Surrogate and Intended Parents seek independent legal counsel to ensure that the agreement is fair, legally enforceable, and fully compliant with Canadian law.