Using a surrogate can be confusing. Regulated under the Assisted Human Reproduction Act, not only are there complex laws and regulations surrounding surrogacy in Canada, but parentage laws vary province-to-province.  To ensure that you are following the laws and regulations surrounding surrogacy, it is important to consult a lawyer and draw up a surrogacy agreement.  Read on to learn more about surrogacy agreements, and why they are so important.

What is a Surrogacy Agreement?

Surrogacy refers to when someone carries a child for an individual or couple who are the intended parents of the child, with the intention that the surrogate will give the child to the intended parents upon the child’s birth. A surrogacy agreement outlines the rights of the parties in this arrangement, ensuring the intentions of each party are upheld, and that the surrogacy is a good fit for both parties.

Situations can become complicated when children are involved, and you should have a surrogacy agreement in place, even if the surrogate is someone you know and trust.  Having an agreement in place will help avoid conflicts, misunderstandings, or fallings-out with the surrogate during the pregnancy or when the time comes for the baby to be born.  The agreement will establish legal parentage of the child and all expectations and obligations associated with the surrogate relationship.

When Should You Create a Surrogacy Agreement?

A surrogacy agreement must be drawn up BEFORE embryos are transferred into the surrogate.  This timing ensures that everyone involved understands their rights, obligations, and expectations in relation to the surrogacy.

If the parties do not sign a surrogacy agreement prior to the transfer of embryos, they will need to undertake additional legal steps so that the intended parents can be recognized as the legal parents of the child.  This may come in the form of a Declaration of Parentage or a second parent adoption, both of which require the commencement of court proceedings.  To avoid the additional financial costs, stress and time associated with these additional steps, it is crucial to speak to a lawyer specializing in fertility law prior to entering into a surrogacy agreement.

If you are considering using a surrogate, or would like more information on surrogacy agreements and the legalities surrounding them, Brace Law can help.  Lianna Sanelli is an experienced family and fertility lawyer, and will be able to guide you through the legal process and draft the necessary legal documents.  Becoming a parent is a huge step in your life, and the legal process that goes along with it should be taken equally seriously. Ensure that you are covered by consulting a lawyer in this exciting and lifechanging time.

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