Surrogacy refers to a process of assisted reproduction where a woman will carry a pregnancy for another person or persons who will then become that child's parent(s) after birth. This is a legal option for gay men in Canada and is governed by the Assisted Human Reproduction Act. The act specifically declares that Canadians seeking assisted reproduction procedures will not be discriminated against upon the basis of their sexual orientation or marital status.
For gay men, the most common practice for assisted reproduction is to find an egg donor and a surrogate who are two different women. The surrogate will then have no biological link to the child. The fertilization and gestational process is done by an in vitro fertilization (IVF) clinic. Various options exist to have the egg fertilized by the sperm of the intended parents. These options should be discussed with medical professionals.
In Canada, a surrogate must be willing to offer this valuable service in an altruist manner without compensation. It is against the law to be a surrogate in Canada for economic gain. The intended parents are only allowed to pay for the surrogate's costs such as medical expenses, lost wages, food, travel, and childcare. Couples wishing to pay a surrogate mother can explore options in the United States or internationally where these practices are legal.
Businesses like Surrogacy in Canada Online or Canadian Surrogacy Options exist in Canada to assist with matching willing surrogates with intended parents. They also provide information and support during the entire surrogacy process. Total costs associated with the IVF method of becoming a parent are estimated at $60,000, according to the Surrogacy in Canada Online website.
For two gay male partners seeking to have a child using reproductive assistance, they will need to create a "surrogacy agreement" which is governed by s. 10 of the Children's Law Reform Act (CLRA). This agreement sets out the intentions of the intended parents and the surrogate. The intended parents and surrogate are required to sign the surrogacy agreement prior to conception. All parties must obtain independent legal advice. The child must also be conceived other than by sexual intercourse.
After the child is born, the intended parents must take steps to become the legal parents of the child. In spite of the surrogacy agreement, the surrogate is still considered the "birth parent" under the CLRA and must give consent to relinquish her right to become a parent after the child is born. This cannot be provided until after the child is 7 days old. According to a representative at Surrogacy in Canada Online, there has never been a surrogate in Canada who has fought to keep the babies they carry. Surrogates in Canada have a tradition of understanding and respecting the vital role they play in assisting families have a baby.
In the unlikely event that the surrogate does not provide her consent, a court application can be made to grant a declaration of parentage to the intended parents under the surrogacy agreement. A surrogacy agreement is unenforceable in law but the court will take the agreement into serious consideration in determining who should be the child's rightful parents.
On January 1st, 2017, Bill 28, or the All Families Are Equal Act, 2016, came into force. Gender neutral terminology was introduced to a number of pieces of legislation dealing with registration of parents and children. In addition, the CLRA was changed to provide clarity for parents seeking to use assisted reproduction to conceive a child. The process for the legal recognition of parents who use a surrogate was streamlined. The legislation is among the most progressive in the world, making Canada a leader in the recognition of the equal rights of same-sex parents.