Surrogacy
in Canada is a legal option and a highly fulfilling alternative for couples
that have difficulty creating a family on their own. It is also a wonderful
opportunity for women to change the lives of those who cannot carry a child to
term.
TYPES OF
Different
types of surrogacy.
§ Genetic Surrogacy: when the genetic mother’s ovum
or ova and the genetic father’s sperm are fertilized and implanted into the
womb of a third party, the surrogate. Thus, the baby in a genetic surrogacy is
not related to the woman who carries him or her.
§ Donor Egg Surrogacy: where the intended father is
genetically related to the child, but the carrier and the intended mother are
not.
§ Donor Sperm Surrogacy: where the carrier is not
genetically related to the child but carries the intended mother’s ova, which
have been fertilized by a donor (not the intended father).
§ Traditional Surrogacy: where the carrier is
genetically related to the child that she bears for the intended parents.
IS SURROGACY LEGAL?
In
Canada, it is legal to enter into a surrogacy agreement. The Ontario Courts
routinely grant Parentage Applications in the case of genetic, donor egg and
donor sperm surrogacies. This means that the intended parents, not the
surrogate or her spouse, will be named on the child’s birth certificate.
CAN A SURROGATE BE PAID?
A
surrogate cannot be paid for her services but her pregnancy related expenses
can be paid. In addition, a surrogate must be at least 21 years old.
SURROGACY CONTRACT
It is beneficial to draft a contract between you and the surrogate to
outline her rights and responsibilities and yours. This contract shows the
intention of the parents and displays the agreement between the surrogate and
the parents. A surrogacy contract can
cover the following matters:
§ psychiatric or psychological pre-screening
§ behaviour during pregnancy
§ issues governing expenses, insurance and
reimbursements
§ issues surrounding genetic testing of the fetus
§ arrangements concerning custody of the child in the
event that something happens to the intended parents (including injury,
separation or divorce)
§ the need for wills
§ resolution of conflicts that may arise during or
after the pregnancy
INTERNATIONAL
SURROGACY
Many intending parents would like to engage in the surrogacy
process outside of Canada. This is very common and Citizenship and Immigration
Canada provides different avenues on bringing the child back to Canada.
The first step is ensuring the intending parents are either
Canadian citizens or permanent residents of Canada. The second step is
determining if the child has a genetic link to the intending parents or not. As
discussed above this can be performed via the gestational method.
For immigration purposes, The Uniform Child Status Act 2010 defines assisted reproduction as a
method of conceiving other than by sexual intercourse. The Uniform
Child Status Act further defines a surrogate as a person who gives birth to a child as a result
of assisted reproduction if, at the time of the child’s conception, she
intended to relinquish that child to
- The
person whose human reproductive material was used in the assisted
reproduction or whose human reproductive material was used to create the
embryo used in the assisted reproduction, or
- The
person referred to in a) and the person married to or in a common-law
partnership with that person.
IMMIGRATION OPTIONS
A common misconception about international surrogacy is that
it is not possible to bring the child back to Canada. This is not true. There
are three approaches that allow for a child, without a genetic link to
immigrate to Canada.
1.
Adoption
When the child is born, the
intending parents can adopt the child and sponsor the child to Canada. In
countries where adoption is not available because the intending parents are
known as the legal parents at the time of birth, the intending parents shall
submit a written confirmation from that country or an expertise visa office
explaining why.
2.
Discretionary Immigration Processing Option
After the child is born, the
intending parents can apply for a Temporary Resident Visa for the child and
once that is granted, they can apply for a Humanitarian and Compassionate
Application on behalf of the child to obtain permanent residence in Canada.
This will enable the child to than apply for Citizenship under subsection 5(4) Citizenship Act.
3.
Apply for Citizenship
(a) Under subsection 5(4) Citizenship Act, the intending parents
can apply, on behalf of the child, for citizenship. This application is asking
for the discretion of Citizenship and Immigration Canada to grant citizenship
on a case-by-case basis.
(b) Genetic link to the parents
Where there is genetic link, parents can apply for Canadian citizenship for their child by descent.
Where there is genetic link, parents can apply for Canadian citizenship for their child by descent.
HOW WE CAN HELP
At A. Princewill Law Firm, we are the immigration experts
that can successfully advise you in which options are available for you and your
child. International surrogacy is complicated and retaining a lawyer will
provide you with the specific legal information you need. In addition, we know
how Citizenship and Immigration access their application and can advise you on
what documents to provide to create a strong case. We will be there for you
every step of the way, before the birth of the child and even after.
Contact us today to book a consultation to discuss how we
can help you.
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