Legal Agreements for Proud Surrogate Moms

August 19, 2019

This post is presented by Proud Fertility

Surrogacy is very legal in Canada

It does surprise me that there are still people today who don’t believe surrogacy is legal in Canada! I can assure you it’s very legal. The Assisted Human Reproduction Act does however, prohibit the provision or acceptance of consideration to a woman for acting as a surrogate. This essentially means that it is illegal to pay a surrogate mother for carrying a baby. In our last blog, we discussed reimbursements, and it is possible to reimburse a surrogate for her reasonable expenses incurred on her journey.

The needs of surrogates vary from person to person

Intended Parents are required to reimburse their surrogate for reasonable expenses that are journey related. But each situation is different, there are different circumstances! Imagine a surrogate who requires bed rest, and has quite a bit of lost wages during her pregnancy – this may look very different from a surrogate who does not have any complications. Another scenario is if a surrogate lives in the same city as the IVF clinic, obviously the costs of her travel expenses would look different than a surrogate who has to travel, from say, New Brunswick!

Why need a legal agreement?

A legal agreement is important because it will help protect both parties – the surrogate and her family, and the Intended Parents. It helps with adding certainty.

Both parties seek their own independent legal advice, so yes – surrogates will have their own lawyer representing them! The legal fees for the surrogate is always at the expense of the intended parents, and there are a good number of reputable Canadian fertility lawyers well-versed in this area.

There are virtually an infinite number of topics that can be included in the legal agreement. I have seen some agreements that are 30 pages, and I have even seen some that are as long as 60 pages (a bit excessive!)

Here are five important variables that are always included in the legal agreement:

1. Reimbursements

Surrogacy agreements do contractually limit the amount that intended parents are required to reimburse reasonable journey related expenses. It’s important that surrogates define what her individual needs are, and there are capped amounts that a surrogate can be eligible to claim. This is typically for (and not limited to) monthly expenses, the reimbursements for an embryo transfer, expenses in the event of a caesarean birth.

In the event that a surrogate requires bed rest, or incurs lost wages, if it is supported by medical documentation, this is also clearly listed as an expense covered by the intended parents in such scenarios.

2. Views on termination

While we hope that ever pregnancy results in a healthy live birth, there are some rare instances where termination may be recommended. However, the view of the intended parents and the surrogate must match.

For example, some intended parents may not be prepared to parent a child with severe life-threatening conditions, or severe birth defects. If termination is recommended by a medical professional, the intended parent and surrogate should come to an agreement with what steps to take next. Literally, they need to be on the same page, and that is covered in the legal agreement before. A surrogate who is “pro-life” would not be a good fit with intended parents who are “pro-choice.”

3. Pregnancy considerations

Generally, experienced fertility lawyers typically have their own set of guidelines that surrogates should follow. Some things that I have seen frequently in all agreements include some of the following:

no changing of the cat litter box
unless the surrogate has had a tubal litigation or her partner has had a vasectomy, a surrogate must abstain from sexual intercourse while attempting to achieve a pregnancy during medicating stages
limiting use of hot tubs during pregnancy
limit strenuous activities that can cause pre-term labour, such as lifting overly heavy objects or activities like snow shovelling
follow medical protocols
hottub
following medical protocol

I always get surrogates who think they have to be legally obligated to follow special diets – no that’s nuts! You…. do you! Surrogates can eat McDonalds if they wish during their journey, or vegan surrogates continue their vegan diet!

4. Birth considerations

Surrogates are providing this extraordinary gift of family. The birth is sacred and it’s important to honour the birth wishes of the surrogate.

At Proud Fertility, we have supported surrogates who have requested the following and these are included in the legal agreement:

use of a birth doula, reimbursed at the intended parents’ expense
choice of having a hospital birth, home birth, water birth, or a birth at a home birthing centre
choice to have their pregnancy care provided by a midwife or doctor / OB
who the surrogate desires to be in the room at the time of birth (it’s all up to the surrogate to allow or not allow the intended parents in the delivery room)
who holds the baby first after birth (some surrogates have included their desire to be the one who hands the baby to the intended parents)

5. Embryo transfer considerations

IVF is not a perfect science and therefore sometimes a surrogate may need to have more than one embryo transfer. This is also a consideration covered in the legal agreement – typically a gestational carrier agrees to under two or three embryo transfers.

At Proud Fertility, we understand the risks of transferring more than one embryo at a time, so generally we have only seen Single Embryo Transfer (SET).

Sometimes a surrogate desires a support person to attend the embryo transfer, and again, this would be accommodated and at the expense of the intended parents, that is stipulated in the legal agreement.

Join us in giving the biggest gift of family!

Surrogacy in the Maritimes is growing and thriving and we have an incredible support network of surrogates who have completed their journey or are in the process. If you’ve been thinking about becoming a surrogate, please feel free to contact us – we are honoured and excited to support you on your journey every step of the way.