Surrogacy in Ontario- how can a lawyer actually help?

The need for surrogacy services in Canada is high and demand outstrips supply. If you happen to find a surrogate (otherwise known as a “gestational carrier”) to carry a child for you, and she agrees not to be compensated except for her reasonable expenses, then you fall within a lucky minority.

In Canada, unlike in the U.S., or other countries such as India, or Mexico, you cannot compensate a surrogate with a fee. In other words, you need to find a friend or family member that will help you out on a volunteer basis. If you can find such a person, you will need a lawyer to draft up the surrogacy contract between you which clarifies that you will be the legal parents after the child is born, as well as what expenses will be paid for.

If, on the other hand, you fall within the broader majority of people who aren’t so lucky as to have a friend or family member that will assist them, then you will likely be travelling to another country for surrogacy services. Whatever contracts are required in that country to establish parentage would need to be prepared and reviewed by a lawyer in that jurisdiction, not Canada.

However, a Canadian lawyer can assist you with the immigration issues involved in bringing back a child to Canada that may not have any genetic link to the parents. Although some jurisdictions will put your name on the birth certificate as the intended parents immediately after the birth, to secure a visa so that the child can be brought back as a Canadian citizen, you would need to establish that one of the parents is genetically related to the child through a DNA test.

If there is no genetic link to the child (if you’ve used a donated embryo or donated egg/sperm), then the parents would need to provide some type of documentation from the foreign jurisdiction stating that adopting the child is not possible. This may allow you to make an application to bring the child into Canada on a temporary basis (and subsequently apply for permanent residence for the child on humanitarian or compassionate grounds). While it’s possible, the immigration hurdles involved in bringing back a child into Canada when there is no genetic link to either parent should not be underestimated.

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