Family Law: Surrogacy in British Columbia by Cristen Gleeson and Dane Reavie

The growth and development surrounding reproductive science is occurring at a rapid pace. Celebrities including NBA star Dwyane Wade and late-night talk show host Jimmy Fallon have used surrogacy to build their families. What is surrogacy? Surrogacy is when a birth mother carries a child with the intention of giving the child to the parent or parents who arranged the surrogacy, generally through a surrogacy agreement. Following the birth of the child or children, the intended parent or parents will be listed on the birth certificate.

S. 29 of the British Columbia Family Law Act (the “Act”), sets out rules governing the determination of parentage in circumstances including assisted reproduction. In British Columbia, following the birth of a child as a result of assisted reproduction, the donor who provided the embryo or human reproductive material is not by necessarily considered the parent of the child. A Surrogacy Agreement allows the parties involved in the assisted reproduction process to determine who the parent(s) will be following the birth of the child or children. Section 29 of the Act sets out requirements that must be met for a surrogacy agreement to be valid in British Columbia.

An individual or couple seeking to utilize a surrogacy agreement in British Columbia must ensure that prior to the child or children being conceived through assisted reproduction, the written agreement is made between the potential surrogate mother and the intended parent or intended parents. The surrogacy agreement must specify that the potential surrogate will be the birth mother of the child or children conceived through assisted reproduction, upon birth, the surrogate will not be the parent of the child or children, and the intended parent or parents will be the child or children’s parent or parents.

Once a valid surrogacy agreement has been signed by both the surrogate mother and the intended parent or parents, and the child or children have been born as a result of assisted reproduction, the intended parent or parents under the surrogacy agreement are considered the parents of the child or children if the following requirements are met:

a) prior to the child being conceived, no party withdraws from the surrogacy agreement;

b) after the child or children’s birth, the surrogate gives written consent to surrender the child to the intended parent or parents; and

c) the intended parent or intended parents take the child into his or her, or their, care.

It is important to note that the surrogacy agreement cannot, on its own, constitute consent of divesting the parentage rights, however, it can be evidence of the parties’ intentions with respect to parentage if a dispute occurs following the birth of the child or children. This is why it is recommended to have written consent signed by both the surrogate mother and the intended parent or parents following the birth of the child or children.

Reproductive law in Canada is complex, and as family dynamics change, many couples who experience trouble conceiving and same-sex couples are utilizing surrogacy. Surrogacy agreements provide an option for people to expand their families. Regardless of the reasons for people to choose surrogacy, it is imperative to obtain legal advice when there is a third party helping to build your family.

The Family law lawyers at Baker Newby LLP have experience in drafting surrogacy agreements and handling surrogacy matters. Please contact lawyers Cristen Gleeson, Laurence Scott, Q.C., or Jessie Ramsay if you would like to know more about surrogacy.