Assisted Reproductive Technology

Assisted Reproduction

Assisted reproduction means conceiving a child, using reproductive technology and means such as surrogacy, sperm, ova or embryo donation. Use of reproductive technology is regulated by both federal law and by provincial law.

While surrogacy, gamete and embryo donation are legal in Canada, the Assisted Human Reproduction Act prohibits, with very severe potential consequences, any person from paying, offering to pay or advertising to pay consideration to a surrogate mother; or from purchasing, offering to purchase, or advertising to purchase, sperm, ova or embryos.

However, the reimbursement of receipted expenses incurred in donating sperm or ova or for the maintenance and transport of an embryo, as well as the reimbursement of receipted expenditures incurred by a surrogate mother in relation to her surrogacy, and the reimbursement of a surrogate mother for loss of work-related income incurred during her pregnancy, the need for which is certified by a medical practitioner, are practices contemplated by the Act. There is a section of the Act that contemplates regulations about these expenses, but that section and the regulations are not yet in force.

The Act also prohibits payments to intermediaries for arranging the services of a surrogate mother or for offering or advertising to make such arrangements, as well as counselling or assisting a person under the age of 21 to become a surrogate mother. The federal legislation and regulations also set out restrictions and requirements for the use of reproductive material and the consents necessary for reproductive material to be used to create an embryo, as well as the consents necessary for the use of embryos once created.

Parentage Determinations

Legal parentage of children born of third party assisted reproduction is determined by provincial law, and there are significant differences from province to province. In Ontario, recent changes to the Children’s Law Reform Act have clarified status of parents and children born of these technologies, as well as kindred relationships that flow from a parent-child relationship.

Now, under Ontario law, a donor who provides reproductive material or an embryo for use in the conception of a child through assisted reproduction will not be recognized as a parent of the child, provided that it is clearly established prior to the conception of the child that the provision of such reproductive material was intended as a donation, and not meant for the personal reproductive use of the person providing the gamete or embryo.

The person giving birth to the child (with the exception of the situation of a surrogacy that meets the requirements of the legislation) is a parent of the child, and the spouse of the birth parent at the time of conception of the child is a parent of the child, provided the spouse consented to be a parent prior to conception. Spouses may be married or living in a conjugal relationship outside of marriage. The birth of the child may be registered showing both spouses as parents. However, there may be circumstances in which a declaration of parentage or stepparent adoption may be advised.

Intended parents of a child born of a surrogacy will be recognized as the parents of the child, with the right to register the child’s birth, if all of the conditions set out legislation have been met. In such a case, the surrogate mother and her spouse will not be recognized as the parents of the child.

To meet such requirements, the surrogate mother and the intended parents must enter into a written agreement in which the surrogate agrees to not be a parent of the child and each of the intended parents agrees to be a parent of the child, before the conception of the child. Independent legal advice is mandatory before a valid agreement may be entered into. The conception of the child must have been achieved through assisted reproduction, and there can be no more than four intended parents who are parties to the said agreement.

Once the surrogate has consented in writing on the 8th day following birth or thereafter, the intended parents will be the parents of the child and the surrogate will cease to be a parent. If the consent is in the form of a prescribed statutory declaration, and the intended parents also complete a statutory declaration, the child’s birth may be registered showing the particulars of the intended parents, only.

The court can make a declaratory order of parentage if the surrogate does not provide written consent, on the application of any party to a surrogacy agreement and the court decision will be governed by the best interests of the child. The surrogacy agreement, while not enforceable, may be used as evidence of intention about parentage. There are some cases where it is necessary to apply to the court even if the surrogate provides written consent, such as cases involving foreign intended parents.

In Ontario, there is no requirement that the intended parents be genetically related to the child conceived through third party assisted reproduction, in order for the intended parents to be recognized as the parents of the child. However, this is not the case in most other provinces of Canada.