Category: Fertility

The Assisted Human Reproductive Act (“AHRA”) governs all aspects of assisted reproductive technology in Canada. So whether you are an international Intended Parent (IP) or a Canadian surrogate, you are governed by this legislative framework. How you establish legal parentage for a child born through ART is prescribed by provincial laws that are not all created equal. For the last 10 years  IPs, Surrogates and Gametes Donor (sperm or ovum) have lacked a definitive schema, without regulations, by which to guide their IVF process. The law defining reimbursable expense did not exist but severe penalties did. This created uncertainty in the advising process for surrogacy and donor agreements due to gaps in the federal law.

We will touch on a few of the legal paradigms about to change and highlight them for you as this gap has now been addressed by the federal government. This article addresses several of the areas, as follows:

Gametes Donations (Egg or Sperm)

Basically, the new regulations sets out in Section 8, Consent for Use of Human Reproductive Material and In Vitro Embryos, the rules respecting the consent for the use of human reproductive material and in vitro embryos. What this means is that the donor must provide consent in the form of a signed document which must prescribe a number of enumerated factors.

Section 10 under the AHRA setting out the safety and storage requirements for gametes is a separate topic and the subject of upcoming article pending on site visits with various clinics.

Reimbursements Related to the AHRA Regulations – Section 12

What are acceptable expenses are set out with the process required to provide substantiate them such as receipts and a specified doctor’s declaration for wage loss during pregnancy.

There are still grey areas including childcare, travel, and maternity clothing. If we keep in mind a legal test we refer to as “But for”, in other words, but for the pregnancy would this be a reasonable expense for the Surrogate to incur, we will remain on side! But it is always the best practice to consult with your fertility lawyer to clarify how the new regulations will impact your journey.

The journey of surrogacy develops not only for each cluster of Intended Parents & Surrogate but also as our understanding grows respecting the commitment and passion of Surrogates as a group.  Each successful birth signifies another positive outcome for a family and further strengthens the role of surrogacy in our society.

For several years, I attended the “Men Having Babies” Conference in San Francisco to learn more about the mechanics of the IVF process including the science and the American legalities.  However, what was more evident to me, beyond the practicalities, was the compassion and serenity of the women who attended and represented the voice of surrogacy as ambassadors for a brave new world of understanding. The program “Sacred Surrogacy” developed by Leia Swanberg, founder of Canadian Fertility Consulting (CFC), captures the essence of the journey these women embark on, taking it to even greater heights.

The women I met at the Conference and all my surrogate clients are certain of who they are and their role (their bun, my oven) by embodying strength, nurturance and clarity.  Non-surrogates are urged to become aware of these characteristics, to provide support and thereby ease the inevitable ups and down of the journey.

I believe that in addition to representing Intended Parents (IPs), I now have a greater insight to support the role of the Surrogate and I am committed to being a strong advocate for all my clients.  On this basis, I bring a keen awareness to my work, in particular, representing the parties in the stage of contract drafting.

We need to negotiate terms for our clients that will provide greater comfort and convenience and be vigilant in these efforts.

For example, requesting a provision that the Surrogate will breast feed has health benefits for both the child and Surrogate, without bonding, as the Surrogate is mindful of what needs to occur for a mutually beneficial recovery which boosts baby’s immunity for a life-time and does not require a relationship.

When I represent IPs, I bring this insight to negotiate a balanced and fair contract for my clients.  My IPs appreciate this understanding of the needs of the Surrogate to ensure their journey together will be as positive and joyful as possible. My clients also benefit from the extensive network of fertility professionals that I have developed over the years to address both the evolving provincial and federal laws, bringing surrogacy into the mainstream.

The above are examples that require the attention of counsel but can add immeasurably to the post–birth recovery and ensure a positive journey for all parties and the child! Be sure your fertility lawyer is familiar with not only the developing law but the needs of the parties. Being a family and fertility lawyer certainly helps!