Surrogacy is legal in Ontario; the arrangement is governed by both federal and provincial law. Federal rules restrict payment to surrogates and regulate reimbursement, while Ontario law sets requirements for agreements, parentage, post-birth consent, and birth registration.
This article explains how surrogacy laws in Ontario work, what intended parents (people who intend to raise a child through surrogacy) and surrogates should address before conception, and what happens after a child is born.
How Surrogacy Laws In Ontario Work
Surrogacy in Ontario sits within two legal frameworks. The federal Assisted Human Reproduction Act prohibits paying a person to act as a surrogate, paying someone to arrange a surrogate for consideration, and counselling or inducing a person under 21 to become a surrogate. The Act permits reimbursement of eligible surrogacy-related expenses when federal requirements are followed.
Ontario law deals with parentage. Section 10 of the Children’s Law Reform Act creates a pathway for intended parents to be recognized as the legal parents of a child born through surrogacy without obtaining a court order, provided specific conditions are met:
- The surrogate and intended parent or parents must enter into a written surrogacy agreement before conception.
- Each side must receive independent legal advice.
- There can be no more than four intended parents.
- The child must be conceived through assisted reproduction.
Key Legal Rules For Intended Parents And Surrogates
Canadian law permits altruistic surrogacy, not commercial surrogacy. An intended parent cannot pay a surrogate a fee for carrying a child. Legitimate expenses incurred in relation to the surrogacy may instead be reimbursed under the federal Reimbursement Related to Assisted Human Reproduction Regulations.
Eligible categories include:
- Travel
- Meals and accommodation
- Care of dependants and/or pets
- Counselling
- Legal services
- Drugs and devices
- Midwife or doula services
- Groceries
- Maternity clothing
- Certain insurance costs
- Prenatal exercise classes
- Delivery-related expenses
Reimbursements also require supporting documentation. Receipts are generally required, along with a signed declaration containing prescribed information. Lost work-related income may be reimbursed only where the federal requirements are met, including written certification from a qualified medical practitioner that continuing to work may pose a risk to the surrogate’s health or that of the embryo or fetus.
Parentage, Birth Registration, And Legal Agreements In Ontario
A surrogacy agreement plays an unusual role under Ontario law. It is required for the section 10 parentage pathway, but the agreement itself is not enforceable in law. It may still be used as evidence of the intended parents’ intention to become parents and the surrogate’s intention not to be a parent.
Parentage does not transfer automatically at birth simply because an agreement was signed. The surrogate must provide written consent relinquishing entitlement to parentage, and that consent cannot be given until the child is at least seven days old. Unless the agreement provides otherwise, the surrogate and intended parents share parental rights and responsibilities between birth and that point.
Ontario also has a specific birth-registration process for surrogacy arrangements. Intended parents using the section 10 pathway can register the birth online, but statutory declarations from the surrogate and intended parents must be completed, signed, commissioned, and submitted to the Office of the Registrar General.
Common Legal Risks In Ontario Surrogacy Arrangements
Problems can arise from treating reimbursement as payment, failing to keep required records, signing an agreement after conception, or proceeding without the independent legal advice required for Ontario’s section 10 parentage pathway.
Another risk is assuming the agreement can compel the surrogate to relinquish parentage. It cannot. If the surrogate does not provide the required post-birth consent because they refuse, cannot be located, have died, or are incapable of consenting, a party may apply to court for a declaration of parentage. The child’s best interests are the paramount consideration.
Clear drafting before conception can also address communication, reimbursement procedures, insurance, confidentiality, and expectations during pregnancy and after birth. These provisions should work alongside, not replace, the statutory requirements.
Speak With Licata Law About Surrogacy In Ontario
Surrogacy arrangements bring together federal assisted-reproduction rules and Ontario family law. Legal advice can help intended parents and surrogates understand the agreement, reimbursement rules, parentage requirements, and post-birth process before treatment begins.
Licata Law provides fertility-law services in Ontario. Intended parents and surrogates can contact the firm to discuss their circumstances and/or learn more from a surrogacy lawyer in Ontario.
Frequently Asked Questions About Surrogacy Laws In Ontario
Is surrogacy legal in Ontario?
Yes. Surrogacy is legal in Ontario, but federal law prohibits paying a surrogate for carrying a child. Eligible expenses may be reimbursed when federal rules are followed.
Can a surrogate be paid in Ontario?
No. The Assisted Human Reproduction Act prohibits payment for acting as a surrogate. This differs from reimbursing eligible expenses incurred in relation to the surrogacy.
Do intended parents need a surrogacy agreement in Ontario?
A written pre-conception surrogacy agreement is one requirement for the parentage pathway in section 10 of Ontario’s Children’s Law Reform Act. The surrogate and intended parent or parents must also receive independent legal advice before entering into it.
How are legal parents determined after a surrogacy birth in Ontario?
Where the section 10 requirements are satisfied, the intended parents become the child’s legal parents when the surrogate provides the required written post-birth consent. That consent cannot be given before the child is seven days old.
What expenses can be reimbursed in an Ontario surrogacy arrangement?
Federal regulations permit reimbursement of specified expenses including travel, counselling, legal services, certain pregnancy-related products and services, maternity clothing, groceries, insurance, and delivery-related costs. Lost work-related income may also be reimbursed in limited circumstances when the statutory requirements are met.
This article provides general legal information and is not legal advice.