Hiring a Surrogate to Have Your Baby

Would-be parents who can’t have a baby of their own can take heart from Ontario’s 2016 All Families Are Equal Act. It explains when and how you can use a surrogate mother. Canadian family law doesn’t allow surrogacy for hire. But anyone can be a surrogate as long as it’s not for profit.

Legal Requirements for Surrogates

Canadian surrogates and intended parents are only required under the Act to:

  1. Create a surrogacy agreement in advance.
  2. Get independent legal advice from their own lawyers before signing.
  3. Ensure the baby will have no more than four intended parents.
  4. Agree to use assisted reproduction.

Once the baby is born, the surrogate signs over legal parentage. The surrogate is no longer a parent and the baby is yours. 

Who Do You Choose

While anyone over 21 can be a surrogate, experience suggests women who have given birth before, are done having their own family and have supportive partners cope best.

No Adoption Needed to be Legal Parent

A happy leap for Ontarians using surrogacy agreements is that they no longer need to legally adopt the infant. The All Families Are Equal Act gives you legal status as soon as the surrogate mother signs the required forms. A Statutory Declaration by Surrogate and the Statutory Declaration by Intended Parents are all that’s needed to register the birth with Service Ontario.

Pregnancy and The First Seven Days

A surrogate mother is responsible for making health decisions for herself and the fetus during pregancy. You only have access to the surrogate’s personal health information or fetal ultrasounds if she agrees. Your parenting responsibilities are shared post birth for the first seven days. Then and only then, can the surrogate mother consent to give up the child.

What to Do in Legal Disputes

Getting a family lawyer’s advice is the best option if you are having a conflict with a surrogate. You can’t coerce a surrogate to surrender a child or do anything that affects their health. So avoid awkward or expensive legal conflicts by seeing a lawyer before you respond in a dispute.

Having Babies Has Own Risks

Since a surrogate agreement is a legal document, enter it carefully. Ten per cent of Canadian women die during pregnancy or after giving birth from pregnancy-related causes such as severe bleeding or obstructed labour. Having high blood pressure, diabetes or heart disease or being obese places many women at risk. Even common conditions like thyroid problems or fibroids can cause miscarriages. Surprisingly, suicide is the fourth leading cause of death during and after pregnancy in Ontario. Be sure your surrogate choice is physically and psychologically up to giving birth. 

When a Surrogacy Goes Wrong

Although deaths are relatively rare, a San Diego woman who died in January 2020 is a reminder things don’t always go the way you planned. The surrogate mother passed away from surgical complications during delivery of the infant girl, the second she helped the family plan. Although the infant was just fine, sadly the surrogate mother left two young children of her own behind. 

Abortion Clause for Birth Defects

The touching story of an eight-year-old Michigan girl highlights what families who choose surrogacy can face. Seraphina Harrell’s birth mother was uncomfortable when a surrogacy contract she signed in 2011 included a clause allowing the couple to abort their fetus in cause of severe abnormalities. “I thought there was such a small chance that anything was going to happen,” Crystal Kelley told People magazine in 2016.

When Ultrasound Reveals Problems

The couple was so excited when the embryo transfer took that the wife texted and emailed her daily. But at 20 weeks, ultrasounds revealed the fetus had severe health problems, including a cleft lip. Kelley’s own daughter had been through heart surgery and she was determined to see the birth through. The couple warned her, she says, that they didn’t want to continue the birth knowing their daughter would suffer.

When the Surrogate Mother Defies Agreement

Kelley declined when her lawyer asked if she wanted to abort. The couple had offered her $10,000 to terminate the pregnancy. Because she was a surrogate mother, the baby wasn’t legally Kelley’s and would be a ward of the state. So Kelley moved 1,200 kilometres away to Michigan, where she had parental rights.

Arranging Adoption for Baby S

With no job, few resources and two daughters already, Kelley felt too overwhelmed to raise another infant. She arranged through a family friend for a couple with adopted children with special needs to be her parents. The couple who hired Kelley to have Seraphina gave up their legal rights in exchange for having their name on her birth certificate and the right to contact the adoptive family.

A Joyful Life

Seraphina’s health problems, called heterotaxy syndrome, resulted in her internal organs being out of place. Her cleft lip was caused when the left and right parts of her brain failed to divide in the fetus (holoprosencephaly). Despite multiple heart defects, she lived a joyful life for over eight years. She was truly a child conceived with love.

Legal Advice on Surrogate Mothering

Axess Law Ontario family lawyers review surrogate arrangements to ensure you are on the right side of the law. Make a day or evening appointment, 7 days a week, by calling toll-free to 1-877-522-9377 or in Greater Toronto at 647-479-0118 or use our online booking form. Meet in person with licensed family lawyers at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.