A Toronto Fertility Lawyer Answers Top Questions from Surrogates and Egg / Sperm Donors
May 26, 2022
As an experienced Toronto fertility lawyer, Kelly Jordan meets with many prospective parents and donors who intend to use assisted reproductive technologies (ART) to conceive.
In Canada, surrogacy, egg donation, sperm donation, in-vitro fertilization and other aspects of assisted reproduction are covered by the Assisted Human Reproduction Act (AHRA).
The foundational principles of the AHRA are to protect the child’s health and well-being, as well as the health, safety and rights of people using IVF and other assisted reproductive technologies. Reproductive law differs quite substantially between Canada and the U.S., however, so there can be many misconceptions regarding fertility law in Canada. If you’re interested in learning more, read our blog outlining the evolution of fertility law in Canada.
The law around surrogacy and donation of reproductive material like eggs and sperm can be confusing. To help prospective surrogates and donors, here are answers to some of the most common questions:
Is Surrogacy Legal In Canada?
Yes. Surrogacy is legal in Canada, however the AHRA prohibits paying surrogates. Under the Reimbursement Related to Assisted Human Reproduction Regulations passed in 2019, surrogates can be reimbursed for out-of-pocket expenses related to surrogacy or sperm/egg donation, such as loss of work or travel.
Can a Birth Mother or Surrogate be Involved in the Child’s Life?
Yes. There are many arrangements where surrogates remain involved in the child’s life, sometimes as an “aunt.” With surrogacy, a birth can be registered in the names of up to four people. You should be aware that remaining involved in thechild’s life after birth can come with legal obligations, including the obligationto pay child support.
Whether or not you wish to be involved in the child’s life, it is important you discuss your intentions with the other intended parents, and seek independent legal advice from a fertility lawyer to draft a surrogacy agreement.
A surrogacy agreement can be used as evidence of the birth parent’s intention either to be a parent, or to not be a legal parent of the child. If you wish to be a surrogate, and live in the Greater Toronto Area, you may wish to work with a Toronto fertility lawyer to understand your rights, and draft a surrogacy agreement.
Can I be Paid for Sperm or Egg Donation in Canada?
No. Just like surrogacy, sperm and egg donation is legal in Canada, however donors cannot be compensated for their donation.
Are there Risks to Sperm and Egg Donation?
Donating sperm and eggs is a selfless act that can provide a couple with fertility issues with the life-changing ability to conceive a child. However, donation of reproductive material can come with quite a few risks.
- Medical risks for egg donors – while sperm donation is a relatively common and safe practice, egg donation is a much more invasive procedure. Egg donation requires weeks of screening, daily drug injections and a surgical procedure to retrieve the eggs. Donors should be aware of the details of the medical procedure and risks before agreeing to donate their eggs.
- Legal risks for egg and sperm donors – the key legal risk for donors is the area of parentage. Parentage is a coin with two sides – donors may wish to be involved in their prospective child’s life, or they may wish to be protected from the responsibilities of legal parenthood.
In either case, it is often important that a donor signs a donor agreement clearly stating their intention to be a parent or not. While anonymous donations typically protect the donor from parental obligations, there have been cases where donors have been sued for child support when they remain involved in their child’s life after conception.
Can my Egg and Sperm Donation be Anonymous?
Yes…and no. As previously stated, anonymous sperm and egg donation typically protects the donor from legal parental obligations (like parenting time and child support). However, the proliferation of online DNA sites like 23andMe and ancestryDNA have made it difficult for donors to remain truly anonymous. Anonymity and legal obligations are two different matters, however.
If you wish to be a donor, consider consulting a fertility lawyer to understand your rights and protections. In Ontario, donors are not considered parents.
Trust Toronto Fertility Lawyer Kelly Jordan to Protect Your Rights
If you are considering surrogacy, egg donation or sperm donation, it is important to know your rights. Whether you wish to be involved in your child’s life, or you wish to remain anonymous, a fertility lawyer can provide trusted, independent advice. It is important that all parties involved make their intentions clear. If the surrogate or donor parent wishes to be involved in the child’s life, the surrogacy agreement or donor agreement needs to clearly lay out the rights and responsibilities of all parties. Reach out to Kelly Jordan today.
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