If you follow me on social media, you’ll know I’ve dropped a few hints about expanding my family law practice into an exciting new area. I am thrilled to officially announce that I will be diversifying my practice to include surrogacy and fertility law.
It’s an area I’ve been interested in for quite some time and dovetails with the incredible work of the health law group at Mills & Mills. With the recent addition of esteemed health lawyer Gilbert Sharpe to the firm, it feels like the right time to grow my practice in a burgeoning area.
Infertility challenges
Canadian statistics estimate that one in six couples in Canada experience infertility — a number that has doubled since the 1980s. If infertility persists, a doctor may recommend assisted reproductive technology (ART), which can include fertility drugs, intrauterine insemination (IUI) or in vitro fertilization (IVF).
LGBTQ individuals and couples as well as single parents by choice are increasingly turning to ART procedures to support their family planning with treatment options including donor sperm or ova, gestational carriers, traditional surrogacy, or directed egg donation from one partner to another.
There are many options for individuals and couples hoping to conceive with treatments conducted in infertility clinics and hospitals, with the assistance of an agency or more informal arrangements. But no matter the path taken, it can be a journey that’s emotionally charged, complex, and, hopefully, rewarding.
Myths, misconceptions and misunderstandings
There has been more acceptance and less stigma around infertility and surrogacy in recent years. Celebrities like Anderson Cooper, Jimmy Fallon, and Kim Kardashian-West, for example, have been transparent about their use of surrogates, while Michelle Obama, Amy Schumer, and Gabrielle Union have talked openly about their struggles with infertility and IVF.
That said, there are still misconceptions, myths and misunderstandings around infertility and surrogacy, particularly relating to legal issues.
For example, under the federal Assisted Human Reproduction Act, surrogates are legal. Still, they cannot be paid in Canada, although they can be reimbursed for certain expenses relating to the pregnancy, such as travel expenses or vitamins and supplements. The same goes for individuals donating genetic material such as sperm or ova. Again, while they can’t be compensated for the donation, they can be reimbursed for related expenditures.
In 2016, Ontario amended its Children’s Law Reform Act through the All Families Are Equal Act to become more inclusive for families created by surrogacy and ART. The legislation sets out rules related to parentage and was introduced to ensure equal treatment for all parents, no matter their sexual orientation or ability to reproduce.
Legal considerations
A recent investigative report from CBC News claims that infertility combined with an increase in same-sex couples starting families means the demand for surrogates has boomed. Although no public health agency tracks surrogate pregnancies, the news outlet canvassed Canadian fertility clinics and found at least 816 surrogate births were reported between 2013 and 2017.
There are two main types of surrogacy — traditional and gestational. With gestational, the intended parents create embryos through IVF (with either their genetic material or donated ova and/or sperm), which is then implanted in the surrogate’s uterus. With this method, the surrogate has no genetic relation to the child.
With traditional surrogacy, the surrogate is artificially inseminated with the intended father’s sperm or donor sperm via IUI, IVF or home insemination. As a result, the child is genetically related to the surrogate.
In either scenario, it’s wise for parties to seek legal advice to discuss the details of the surrogacy arrangement before the embryo transfer or insemination. An experienced lawyer will give advice and draft a surrogacy agreement outlining the responsibilities and other particulars of the arrangement.
Suppose an individual or couple is not using a surrogate but is using a donor egg, sperm or embryos to build a family. In that case, there are still legal considerations, and again, a properly executed agreement before donating/receiving any genetic materials is advised.
Even though legislation in Ontario makes a clear distinction between a donor and a parent, receiving donor sperm through intercourse rather than from a bank or artificial insemination could become complicated. A fertility law lawyer can help parties navigate the patchwork of federal and provincial laws and regulations while reducing complications and ambiguity.
Growing forward
Although fertility and surrogacy law can be complicated, I’m passionate about helping people build families and assisting them through an important journey.
As I ramp up my practice in this area, watch this space for more content related to family planning, fertility and surrogacy.
