Starting a Family Using a Surrogate: What Are The Rules in Alberta?


By Soni Nayak

Having a baby is an exciting and joyous life event in the lives of many, but not everyone is able to conceive a child in the traditional way. More and more frequently, Albertans are exploring their options when beginning a family and are considering methods like adoption and surrogacy. Prospective parents must be aware: choosing the surrogacy method for having a baby can be filled with possible pitfalls. Essentially, surrogacy is having someone else, known as the surrogate, be pregnant and carry your baby for you. 

There are two basic types of surrogacy. Gestational surrogacy occurs when the egg used for conception comes from anyone other than the surrogate; for example, the egg could come from the intended mother. The egg is then fertilized with the sperm of either the intended father or a sperm donor, and the fertilized egg is implanted into the surrogate. Traditional surrogacy occurs when the baby is biologically related to the surrogate: the egg comes from the surrogate, and the sperm comes from another male (either the intended father or via a sperm bank). 

Traditional surrogacy tends to be less expensive than gestational surrogacy because the parties can avoid the cost of an in vitro fertilization procedure; traditional surrogacy can be done at home, while gestational surrogacy must be performed at a fertility clinic. However, emotions may play more of a part if the parties choose to utilize the method of traditional surrogacy. Since the baby will be biologically related to the surrogate mother (as it was her egg that was used), the surrogate may have a harder time giving up the baby after it is born. 

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Surrogacy is legal in Canada, and it is governed by a federal law called the Assisted Human Reproduction Act, although the provinces have their own legislation as well. Those who wish to act as a surrogate must be between 21 and 49 years old and have previously given birth. They should have a strong support system of friends and family and a stable home in Canada. A surrogate must be physically and mentally healthy before they can act as a surrogate; in fact, they must pass multiple health checks and tests.

While being a surrogate is perfectly legal, the surrogate is not allowed to be paid any extra fees by the intended parents. However, the surrogate is entitled to have her expenses paid. These expenses include things like health expenses, travel expenses to and from doctor’s offices or fertility clinics, legal fees, and counselling. Basically, surrogacy is legal as long as the surrogate does not make a profit from acting as a surrogate. 

The rules and red tape around surrogacy, both for the surrogate and the soon-to-be family, are numerous, complicated, and confusing. The first step is finding a woman who is willing to act as the surrogate. Once the woman has agreed, a contract, more commonly known as a surrogacy agreement, should be drawn up between the surrogate and the parents. This is not a document that you should attempt to create on your own! A surrogacy agreement is complex and will set out the legal obligations and rights of each of the parties – it is crucial that this document be created properly by a qualified lawyer. Even if you are choosing to go the route of traditional surrogacy and are using the sperm of someone you know and trust, it is critical to have a strong legal agreement in place. 

Some of the topics that are typically covered in a surrogacy agreement can include the surrogate’s behavior during pregnancy, including prohibition of the use of drugs and alcohol, psychological testing of the surrogate, how and when the surrogate’s expenses and insurance will be paid, and, most importantly, how any conflicts between the surrogate and intended parents will be resolved. 

The complications and potential issues surrounding surrogacy do not stop once the baby is born. In fact, in many cases, this is where the trouble can begin. The new parents must take the appropriate legal action to have themselves declared the legal parents of the child. This is especially critical in Alberta, because in our province, the law will automatically recognize the woman who gave birth to the child (the surrogate) as the legal mother of the baby. The document that the new parents require is called the Declaration of Parentage. A Declaration of Parentage must be filed with and approved by the court, and the parents must have the surrogate’s consent on the document. While this process is taking place, the new parents will have full physical custody of the baby. This process may sound challenging, but it’s actually good news; having a signed Declaration of Parentage means that the new parents do not have to go through the far more difficult process of adopting the new baby. They will be simply be recognized as the parents of the child.

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Once the Declaration of Parentage has been granted by the court, the parents will file it with Vital Statistics at the Government of Alberta, and a new birth certificate will be issued for the baby. This birth certificate will name the new mother and father, and not the surrogate, as the parents of the child; the old birth certificate will be destroyed. 

At this point, it is vital to point out that the process is the same for all couples, regardless of orientation. Here in Alberta, there is no discrimination against same-sex couples and non-traditional families when it comes to filing the Declaration of Parentage. Two fathers or two mothers can be named on a birth certificate as the parents of the child. 

Seeking legal advice before you begin the process of surrogacy is extremely important to protect yourself, your surrogate, and your future family. If you have questions about surrogacy or are interested in either becoming or obtaining a surrogate, please CONTACT  Soni Nayak at SN Law Office for a free consultation.

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