Traditional and Gestational Surrogacy
Surrogacy involves a woman carrying a baby for intended parents and giving that child (physically and legally) to the intended parents upon birth.
There are two types of surrogacy, both of which are legal: traditional and gestational.
Traditional surrogacy involves a surrogate carrying a child for intended parent(s) where the surrogate herself is the child’s biological mother. In some situations, a traditional surrogate will be a close friend of the intended parent(s) or a relative of a female intended parent who is not able to produce eggs or carry a pregnancy herself. A traditional surrogate agrees to be inseminated with sperm, typically that of the intended father.
Gestational surrogacy involves a surrogate who agrees to carry the pregnancy, but is not the child’s biological mother. Typically, the embryo the gestational surrogate carries was created with the help of IVF. The embryo may or may not be made up of the reproductive material of one or both intended parents, or a donor may have contributed some reproductive material.
Traditional surrogacy arrangements are legally fraught for a variety of reasons, including the fact that section 10 of the Children’s Law Reform Act, which relates to surrogacy, requires surrogacy arrangements to be the result of assisted reproduction (i.e. not sexual intercourse). Fertility clinics may refuse to assist with traditional surrogacy arrangements, so medically-assisted reproduction may be entirely unavailable.
If you are considering expanding your family through surrogacy, becoming a surrogate, or becoming a sperm or egg donor, you need to ensure you have a lawyer familiar with the area of fertility law on your side.