The Growing Area of Fertility Law In Ontario

We are partners in the Family Law Group at the Kingston law firm of Cunningham Swan Lawyers where, in addition to offering a full range of family law services, we are rapidly expanding a niche practice in the developing field of Fertility Law.

Given advances in science, there are many more children born today by non-traditional means, including the use of surrogacy, sperm donation and egg donation. Historically, surrogacies have not been the subject of open discussion. This is changing as this remarkably altruistic act  becomes far more common.

Surrogacy is when a woman carries a baby for someone else. There are two types of surrogacy: traditional surrogacy where the surrogate’s egg is fertilized with donor sperm, and gestational surrogacy where both the sperm and the egg come from other people so the surrogate is not biologically related to the baby. The identity of the people donating the sperm and egg could be known or anonymous.  So there can be numerous people involved in creating a baby in these situations, namely the intended mother(s), the intended father(s), a surrogate (also known as a gestational carrier), a sperm donor and an egg donor.

Fertility Law is a complex area of law where individuals, if they are not careful, can inadvertently create situations with long-term negative repercussions. It falls at the nexus of several areas of law, namely Family Law, Health Law and Human Rights, Immigration, Wills and Estates, Criminal Law and Conflicts of Laws. Fertility Law covers the use of surrogates or the donation of genetic material (sperm or ova).

The Assisted Human Reproduction Act, (S.C. 2004, c.2), sets out limits on the use of surrogates and genetic material. While this legislation does impose criminal penalties for misuse of genetic material or profiting from surrogacies, it does not address the increasingly complex types of parenting arrangements that can result from the use of surrogates. Generally, in Ontario, the law relating to parentage of children is contained in the Children’s Law Reform Act, which underwent significant amendment in 2016 with the coming into force of Bill 28, All Families Are Equal Act. This new legislation finally provided law for Ontarians wishing to have children through alternative means and assists families in understanding the rights and obligations of all parties involved in a surrogacy.

In our practice, we assist surrogates, intended parents or material (egg or sperm) donors to prepare surrogacy contracts and donor material contracts that make sure everyone involved clearly knows their rights and obligations not just before conception, but  during and  following  the  pregnancy.  The contracts  we draft  clearly  set out  the intentions of the parties and also ensure proper legal recognition of the child and his or her parents following the birth. A Court Application may be required to ensure accurate parentage is recorded with the Ontario and federal governments.

There are many legal issues which need to be considered when individuals and families are making a decision to use or become a surrogate. For example, who will make medical decisions during the pregnancy and at the birth regarding the baby? Should it be the surrogate, whose body is carrying the baby, or should it be the intended parents, who will be the legal parents of the child once it is born?

Also, how the surrogate will be compensated needs to be clear. Current law makes it illegal to pay someone else to have a baby. A surrogate, however, can be reimbursed for expenses she incurs as a result of carrying the baby.

What about the future relationship between the baby, the surrogate, the egg or sperm donors, the surrogate’s own spouse and any other children she may have? Some intended parents and surrogates plan to have an open relationship following the birth where the child will grow up knowing they were born through the use of a surrogate and have varying degrees of openness in their relationships; others decide there will be no contact.

Fertility Law extends beyond the purely legal issues. Given the deeply personal nature of the matters being considered, Fertility Law encompasses consideration of physical and emotional health and collaboration of various professionals. Lawyers are involved in drafting the contracts to ensure legal rights and obligations are clear. Doctors and hospitals are involved in ensuring the health of the surrogate and the baby. Counsellors are often required for each surrogate and intended parent to ensure they are properly prepared for the psychological impact of the surrogacy. The parties need to ensure they are all aware of and comfortable with all those who will be assisting them with the surrogacy.

While the most important thing for everyone involved is to ensure a healthy baby, the legal issues must also be addressed. As Fertility Law lawyers, our mission is to provide our clients with the information they need to make carefully considered decisions, to help them clarify their intentions in order to avoid future misunderstandings and to help them access the services of supportive professionals who help make childbirth through surrogacy a rewarding experience.

Lesley Kendall and Carolyn Shelley, both AFCC-O members, have extensive experience in all types of family law matters including adoption, marriage contracts and cohabitation agreements, separation and divorce, child custody and access, child and spousal support, division of property and surrogacy.  Lesley is certified by the Law Society of Upper Canada as a Specialist in Family Law.

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