If these criteria are not met, a decision of the Parents` Court after birth is necessary to establish parentage with the parents envisaged. But even with prior agreement, a postnatal order can be obtained, as some intentional parents require or wish. The Human Reproduction Act (“AHRA”) does not prohibit surrogacy; Therefore, surrogacy is legal in Canada. What is not legal is to pay a woman as a replacement delivery (often called “commercial surrogacy”). This means that when a woman decides to become a surrogate mother, it must be an altruistic act and not a financial motivation. Commercial surrogacy is permitted in other parts of the world. Although a surrogate mother cannot be paid in Canada, she can be compensated for all expenses. For the purposes of the rules, a “substitute” is a person who agrees to bear a child conceived by assisted reproduction (i.e. not by sex), provided that the person intends, at the time of conception, to transfer the right to parentage of the child to one or more persons from the birth of the child. A substitute may enter into a “surrogacy agreement” with up to four parents[1] in which the substitute agrees not to be a parent of the child and the other parties all agree to be the child`s parents.

The parties must enter into the surrogacy contract before the child is obtained by assisted reproduction and each party to the surrogacy contract must receive independent legal assistance before the conclusion of the surrogacy contract. It is interesting to note that the rules provide that a surrogacy agreement is not legally applicable, but that it can be used as evidence of the substitute`s intention not to be a parent and the intention of the parents to be parents. This type of surrogacy is the most common. The surrogate mother has no biological connection to the child she is carrying. Eggs and sperm are intentional parents, the donor or the combination of both. Gay male couples need an egg donor and a pregnancy carrier. If the egg donor is known, an agreement should be reached that indicates the intent of all parties involved. An agreement with the pregnancy carrier is also necessary. In some situations, the two men in the couple will give sperm to create a variety of possibilities, including twins so that each man in the couple is the biological parent of a twin.

For all those considering a surrogacy agreement – where the child is to be born – it is necessary to consider before borrowing. For non-Canadians considering using a Canadian substitute, you should keep in mind that building a family with assisted third-party reproductive technology is an exciting but difficult journey.