Family Law Lawyers: Types of Surrogacy Arrangements
Apr 24, 2023
Surrogacy arrangements and fertility treatments can be a challenging topics for surrogates and intended parents to discuss. And although it is not often discussed openly, it’s a topic many couples face and consult family law lawyers about. The World Health Organization estimates that 1 in 6 couples experience challenges related to infertility in their lifetimes.
Kelly Jordan is a recognized expert in fertility law in Canada, and the family law lawyers at the Kelly D. Jordan Family Law Firm can help you navigate your fertility law issues. They specialize in surrogacy agreements, birth registration, parentage declarations, and more.
In Canada, surrogacy law is governed by the Assisted Human Reproduction Act (AHRA), which covers consent for use of human reproductive materials (like sperm and eggs) for use in In Vitro Fertilization (IVF), as well as the safety of its use. In addition, the act addresses payment for assisted reproduction, whether it be donated eggs, sperm, or surrogacy arrangements.
What is Surrogacy?
Surrogacy is an arrangement (often a legal arrangement) where a woman agrees to carry and deliver a child for another couple or person. The person who agrees to carry the child is called the surrogate.
Commercial surrogacy is an arrangement where the surrogate is paid for their services. This type of surrogacy is restricted in Canada. In Canada, we have an altruistic surrogacy system.
Altruistic surrogacy is where the surrogate agrees to carry the child for the couple without compensation. This is the only type of surrogacy legally allowed in Canada. While the surrogate cannot be paid directly for their service, they can be reimbursed for expenses such as traveling, meals, counseling, legal services, and medical expenses.
If you are considering finding a surrogate or becoming a surrogate, seeking independent advice from family law lawyers is very important to ensure your rights are protected.
Family Law Lawyers Explain Main Types of Surrogacy Arrangements
There are two main types of surrogacy arrangements: traditional surrogacy and gestational surrogacy.
In traditional surrogacy, the surrogate is artificially inseminated with the sperm of the intended father. The child in this case is genetically related to the father and surrogate mother.
In gestational surrogacy, an egg from the intended mother and sperm from the intended father is used to create an embryo that is then implanted in and carried by the surrogate mother. The child born from this arrangement is genetically related to the intended father and mother, and not the surrogate.
If it is biologically possible, many prospective parents prefer gestational surrogacy arrangements, because the child will be genetically related to both parents. Many also feel that the surrogate mother is less likely to try to assert parenting rights over the baby if it is not genetically related to them.
Regardless of the surrogacy arrangement, family law lawyers will urge you to go through the process of executing a surrogacy agreement covering custody and access arrangements, the naming of the child, any requests for the surrogate during the pregnancy, and responsibility for medical arrangements before, during, and after the surgery.
Other Types of Surrogacy Arrangements
Surrogacy is not black and white. The two types of surrogacy arrangements (gestational and traditional) do not cover the full spectrum of methods to conceive a child via surrogacy. In some cases, the neither intended parent is able to donate genetic material (sperm or eggs).
- Traditional Surrogacy with Donor Sperm – in this arrangement, the surrogate is inseminated with donor sperm. The resulting child is related genetically to the sperm donor and surrogate.
- Gestational Surrogacy & Egg Donation – if there is no intended mother, or the intended mother is able to produce eggs, a donor egg can be used alongside sperm from the intended father. The child will be genetically related to the intended father and the egg donor, with no genetic relation to the surrogate.
- Gestational Surrogacy & Donor Sperm – an embryo is created from donor sperm and a donor egg from the intended mother. The resulting child is genetically related to the intended mother and the sperm donor.
- Gestational Surrogacy & Egg/Sperm Donation or Donor Embryo – in this arrangement, the neither intended parent is able to provide genetic material (sperm, egg). The surrogate mother carries a donated embryo or an embryo created from donated egg/sperm. The child is genetically related to the donors, with no genetic relation to either the surrogate mother or intended parents.
Fertility law raises deep, complex emotions. Those who have experience with fertility law know that parenting and love go deeper than genetic relationships. However, genetics do play a part in parentage and the law, and it’s important to be aware of how.
Family law lawyers experienced with surrogacy and fertility arrangements can guide you through the various types of agreements, and help navigate the rights of the intended parents, egg/sperm donors, and surrogates.
Have Questions About Surrogacy Arrangements? Contact the Family Law Lawyers at the Kelly D. Jordan Family Law Firm
If you are considering IVF, surrogacy, or sperm/egg donation, reach out to the family law lawyers at the Kelly D. Jordan Family Law Firm. We have experience with many types of fertility arrangements and can guide you through your rights and responsibilities to help ensure you have a happy and rewarding experience. Contact us today.
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