The new parentage rules in the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 (“Act”), include rules for determining parentage where surrogacy is used. The surrogacy rules became effective on January 1, 2017 and are largely set out in sections 10 and 11 of the Children’s Law Reform Act (“CLRA”) as amended by the Act.

For purposes of the rules, a “surrogate” is a person who agrees to carry a child that is conceived through assisted reproduction (i.e. not through sex), provided the person intends, at the time of conception, to relinquish entitlement to parentage of the child to one or more persons once the child is born. A surrogate may enter into a “surrogacy agreement” with up to four intended parents[1] in which the surrogate agrees not to be a parent of the child and the other parties all agree to be parents of the child. The parties must enter into the surrogacy agreement before the child is conceived through assisted reproduction, and each party to the surrogacy agreement must receive independent legal advice before entering into the surrogacy agreement. Interestingly, the rules state that a surrogacy agreement is unenforceable at law, but can be used as evidence of the surrogate’s intention not to be a parent and the intended parents’ intention to be parents.

When the child is born, the surrogate and the intended parents share the rights and responsibilities of a parent for the first 7 days of the child’s life, unless the surrogacy agreement provides otherwise. Any provision of the surrogacy agreement dealing with the rights and responsibilities of a parent after the first 7 days is of no effect. The surrogate ceases to be a parent of the child when the surrogate provides a written consent to the intended parents relinquishing the surrogate’s entitlement to parentage, and each intended parent then becomes a parent of the child. The written consent cannot be provided until after the first 7 days of the child’s life. If the surrogate does not provide the consent because the surrogate refuses, has died, is incapable, or cannot be located, any of the parties to the surrogacy agreement can apply to the court for a declaration of parentage, and the court will make a determination using a best interests of the child standard.

Sara R. Cohen, a fertility law lawyer in Toronto, has commented on the new surrogacy rules in her Fertility Law Canada blog, in an entry entitled “The All Families Are Equal Act is Problematic for Surrogacy in Ontario. Here’s Why”. Not surprisingly, Ms. Cohen argues that the new surrogacy rules have created problems for surrogacy in Ontario. One reason is that the rules do not distinguish between “gestational surrogacy”, where the surrogate has no genetic connection to the child, and “traditional surrogacy”, where the surrogate does have a genetic connection to the child. Ms. Cohen writes that gestational surrogacy represents the vast majority of cases in Ontario and is much less risky than traditional surrogacy; gestational surrogates rarely change their minds about parentage after the child is born. Ms. Cohen writes that prior to January 1, 2017, the understanding in Ontario was that gestational surrogacy agreements were generally enforceable, while traditional surrogacy agreements were understood not to be enforceable. This meant that parties to a gestational surrogacy agreement could generally rely on the courts upholding the agreement in the event of a dispute, even if such disputes are rare.

However, as noted above, the new rules make all surrogacy agreements in Ontario unenforceable, and in the event of a dispute the court is required to apply a best interests of the child standard, rather than upholding the terms of the agreement (in the case of gestational surrogacy). Ms. Cohen writes:

By failing to distinguish between gestational surrogacy (where pre-conception intention has applied) and traditional surrogacy (where the family law ideal of the best interests of the child has applied), The All Families Are Equal Act makes gestational surrogacy as legally precarious as is traditional surrogacy. This is problematic both for the parents, who no longer have the security they previously enjoyed, but also for a gestational surrogate who may want to enforce an agreement as against the intended parents but may no longer be able to do so as a result of this legislation.

Ms. Cohen goes on to set out several other problems arising from the new surrogacy rules, including the potential for fraud or coercion by removing judicial oversight, and the failure to protect the privacy of children born through surrogacy in the same manner as adopted children. If you have family, friends, or clients who are using surrogacy to build a family, I recommend reading Ms. Cohen’s entire blog to appreciate the particular risks and vulnerabilities they may face.

[1]       If more than four intended parents are parties to the surrogacy agreement, but it otherwise meets the requirements of a surrogacy agreement, then a party to the surrogacy agreement can apply for a declaration of parentage during the first year of the child’s life and the court will determine the matter based on the best interests of the child.