Many couples who are facing fertility issues, and same-sex couples, are turning to alternative reproductive techniques, such as surrogacy and sperm donation, in order to have a child or children.
Surrogacy really covers a wide range of reproductive possibilities. On one hand, the off-spring could be a genetic match of both the intended parents, just one of the intended parents, or neither in some circumstances. Two general categories of surrogacy are “traditional” (the surrogate is biological related to the child) and “gestational” (the surrogate is not biologically related to the child).
Some surrogates are family members, or friends, trying to assist loved ones in having a child. Some are unknown to the intended parents prior to the surrogacy. There are various organizations across the country, whose purpose is to put together intended parents and surrogates.
Before proceeding with a surrogacy, the Parties should prepare and sign a detailed Agreement. The Agreement is a legal contract between all the parties and their spouses that will detail all the arrangements between the parties. The Agreement will deal with many issues, including:
- Psychological assessments
- Medical examination
- Sexual abstinence
- Pre-natal obligations
- Early termination/selective reduction
- Custody of the child/children
It is vitally important that both parties have independent legal advice on this comprehensive Agreement.
Assisted Human Reproduction Act
This area of the law is governed by the Federal Assisted Human Reproduction Act, passed in March of 2004. The AHRA deal with more than surrogacy; for example, cloning, embryo research, etc. With regard to surrogacy, the AHRA states, for example:
- All surrogates must be 21 years of age or older;
- You cannot pay consideration (money, gifts, or services, for example) to a surrogate or reimburse a surrogate for an expenditure incurred by her in relation to the surrogacy, unless a receipt is provided to that person for the expenditure;
- You cannot reimburse a surrogate for loss of work-related income incurred during the pregnancy unless a doctor certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus;
- You cannot sell or purchase sperm or ova;
- You cannot select the sex of an embryo.
Once the child is born, the surrogate must be named on the initial birth certificate as the mother of the child. Until September of 2008, intended parents had to adopt the child in order to confirm that they were, in fact, the parents of the child. This was the case even if the child was genetically related to both intended parents.
That changed with amendments to the Vital Statistics Act that now provides a streamlined court process. Now, an application is made to the appropriate court, requesting that the birth certificate be changed and declaring that the intended parents are the parents of the child. This streamlined court process can only be used if:
- The surrogacy arrangement was initiated by the intended parents;
- The surrogacy arrangement was planned before conception;
- The woman who is to carry and gives birth to the child does not intend to be the child’s parent;
- The intended parents intend to be the child’s parents;
- One of the intended parents has a genetic link to the child.
Occasionally in a surrogacy situation, neither one of the intended parents has a genetic connection to the child. In that case, the child must be adopted by both of the intended parents.
Often, sperm is donated by an anonymous sperm donor; however, occasionally the sperm donor is known to the intended parent or parents. It is important, especially where the donor is known to the intended parent/parents, that a donor agreement be signed by both parties with independent legal advice. The donor agreement would detail, for example:
- The donor’s relationship (or lack of one) to the child;
- How the information regarding the child’s parentage will be presented to the child, if at all;
- Medical testing of the donor and his sperm;
- Psychological testing.
This area of the law is ripe for interesting and unique legal cases. For example, in Caufield v. Wong, a woman asked her friend to help her become pregnant. They created a number of frozen embryos, and had a child. Then, they started disputing custody of the child and what would happen to the remaining embryos. The court granted both parties joint custody of the child, but gave the woman the remaining frozen embryos, despite a contract to the contrary. The woman could have more children with the man without his consent.
This information has been provided for general reference only. For advice on an actual matter, you should consult a lawyer. Connect with a member of our team today to schedule your consultation. To contact a member of our team call us at 902-469-9500 or 1-866-339-3400 or contact us online to make an appointment.
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