Fertility Law

Independent legal advice (ILA) means consulting with your own lawyer—separate from the other parties —to gain a clear understanding of your rights, obligations, and potential risks before signing a legal agreement.

By seeking ILA, you ensure that you fully grasp the legal implications of the agreement and the options available to you.

No, the same lawyer cannot represent both the intended parents and the surrogate or donor in a fertility matter. This is because their interests may conflict.

To safeguard each party’s rights and interests, independent legal representation is important. Having separate lawyers helps ensure enforceability of agreements while avoiding conflicts of interest.

While a sperm donation agreement is not legally required, we highly recommend having one in place. If you are working with a fertility clinic, this agreement will be necessary.

For those using a known donor rather than an anonymous one, a written agreement is essential to protect everyone involved. It clearly outlines expectations regarding conception, pregnancy, and the child’s upbringing, covering key issues such as parental rights, medical history disclosure, testing, financial considerations, confidentiality, future contact, and the use of any remaining frozen sperm or embryos.

Relying on a generic online template can be risky, as it may not align with current laws or your unique situation. A poorly drafted or improperly executed agreement could be unenforceable if challenged in court. To protect yourself, it is best to have a customized agreement prepared with proper legal guidance.

Yes, both gestational and traditional surrogacy are legal in Canada; however, commercial surrogacy is prohibited. Under the Assisted Human Reproduction Act (AHRA), it is illegal to compensate a surrogate beyond reimbursing eligible expenses, as outlined in the Reimbursement Related to Assisted Human Reproduction Regulations.

Additionally, each province has its own legal requirements that must be met. For example, in British Columbia, the Family Law Act governs surrogacy arrangements and establishes the legal framework for parentage.

No, surrogates cannot be paid in Canada. Commercial surrogacy, where a surrogate receives compensation beyond reimbursement for expenses, is illegal under the Assisted Human Reproduction Act (AHRA).

However, altruistic surrogacy is legal. While surrogates cannot be paid for carrying a child, they can be reimbursed for eligible expenses related to the pregnancy. These reimbursements must comply with the Reimbursement Related to Assisted Human Reproduction Regulations, which took effect on June 9, 2020, and require proper documentation to ensure compliance with the law.

In British Columbia, a surrogacy agreement must be in place prior to conception to ensure that the intended parents will be recognized as the child's legal parents at birth. This agreement is necessary for the birth registration with Vital Statistics.

A surrogacy agreement sets out in detail the rights, responsibilities, intentions and expectations of both the intended parents and the surrogate. Since every surrogacy journey is unique, these agreements are highly customized to reflect the specific circumstances of the parties involved.

Key components typically include:

• Parental Rights and Birth Registration – Ensures the intended parents will be registered as the child’s legal parents at birth.

• Financial Considerations – Specifies the surrogate’s eligible expenses, and how the expenses and lost wages will be reimbursed in compliance with Canadian law.

• Health & Well-Being – Covers the surrogate’s prenatal care and testing and overall health and lifestyle expectations.

• Unexpected Situations – Outlines what would happen in various scenarios that may arise during the surrogacy process.

• Assumption of Risk - Includes releases for the parties involved to protect them from liability.

• Medical Decisions – Addresses how medical decisions will be made throughout the pregnancy and at birth.

• Confidentiality - Defines expectations regarding disclosure to third parties, social media use, and information shared with the child in the future.

• Information Sharing - Sets out required disclosure between the parties.

• Insurance - Addresses matters such as life insurance for the surrogate.

• Dispute Resolution – Establishes a conflict resolution process in case of disagreements.

Given the legal significance of a surrogacy agreement, both the surrogate and the intended parents must obtain independent legal advice to ensure their rights are protected.

An egg donation agreement ensures that all parties have a clear understanding of their rights and responsibilities. It covers topics, such as parental rights, medical history disclosure, testing requirements and the retrieval procedure, releases from liability, confidentiality provisions, and financial considerations including expense reimbursement. It also addresses the ownership and future use of remaining frozen eggs and/or embryos.

An embryo donation agreement ensures that all parties have a clear understanding of their rights and responsibilities. It covers topics such as parental rights, medical history disclosure, releases from liability, confidentiality, and financial considerations. The agreement also addresses the ownership, storage, and future use of any remaining embryos to provide clarity and prevent disputes.

No, donors cannot be paid for donating sperm, eggs, or embryos in Canada. Under the Assisted Human Reproduction Act (AHRA), it is illegal to pay for, offer to pay for, or even advertise to purchase sperm, eggs or embryos from a donor or a person acting on their behalf.

However, donors can be reimbursed for eligible expenses incurred in relation to the donation process. These reimbursements must comply with the Reimbursement Related to Assisted Human Reproduction Regulations, which require specific documentation.