When intended parents resident in Ontario use a surrogate or an egg or sperm donor, there are different ways that those intended parents can become legally recognized parents.
Where intended parents are spouses and use assisted reproduction (not surrogacy) or an anonymous sperm donor, the birth parent and her spouse are recognized as the legal parents. This means that for example lesbian couples who choose to become pregnant with the help of an anonymous sperm donor can register the birth mother and her spouse as the legal parents of the child, just as a heterosexual couple would do.
Where intended parents are working with a surrogate, the Children’s Law Reform Act requires that there be a surrogacy agreement in place prior to the child’s conception, and that the surrogate give written consent relinquishing the surrogate’s entitlement to parentage. That written consent must be given no less than 7 days after the birth of the child. The legislation also requires that the surrogate and intended parent(s) received independent legal advice prior to the surrogacy agreement being signed.
Where a known donor contributed reproductive material (sperm or egg) there should be a donor agreement in place clarifying the expectations of everyone involved as to who will be a legal parent to the child. Egg or ova donors for example may have no intention at all of being a legal parent to the child conceived via assisted reproduction, but that needs to be clearly spelled out in an agreement. Most fertility clinics in Ontario will not assist a donor unless there is a signed agreement in place already.
The All Families Are Equal Act, which came into force January 1, 2017, amended the laws around the ways in which parentage is assumed and intended parents in surrogacy arrangements become legal parents. Whatever your circumstances, a lawyer can provide information about your potions and advice as to what type of contract or particular terms best suit your particular situation. If you are thinking about adding to your family you should consult a lawyer early in the process.
This blog post was written by Jenny Johnston, a member of our Family Law team. She can be reached at 613-566-2081 or at jenny.johnston@mannlawyers.com.
