Kim Kardashian and Kanye West announced this week that they are expecting a baby girl this January to be delivered via surrogate. The couple have two children together, but given the difficulty and danger Kardashian faced in her first pregnancies, they elected to pursue surrogacy for their third.
Assisted reproduction is a relatively new area of medicine, and in many ways the law is still catching up. What are the legal rights of a surrogate? Are they considered a legal parent? Can they choose not to forfeit their parental rights? These are some of the questions that may come time mind when discussing surrogacy in the family law context.
In Ontario, surrogacy is governed by the The Assisted Human Reproduction Act (the “AHRA”). Surrogacy itself is not banned, you cannot pay for a surrogate. You may only reimburse the mother for expenses related to the surrogacy.
At the beginning of the surrogacy process the intended parents should meet with a lawyer to discuss the details and draft a surrogacy agreement. If there is a known egg or sperm donor, the lawyer for the intended parent(s) will also draft a donor agreement. The surrogate and donor(s), if applicable, then seek their own legal counsel and obtain independent legal advice. When the terms are satisfactory to both parties, the agreement is finalized. It is very important that these steps happen before the embryo is transferred (or in-vitro fertilization occurs, in the case of genetic donation).
After the birth, the surrogate mother must wait seven days to provide the Intended Parents with a sworn Statutory Declaration of Non-parentage. Subsequently the Intended Parents will complete their own Statutory Declaration of Parentage to file with the Office of the Registrar General.