Gay men who want a child who is genetically related to them typically seek the assistance of two women: an egg donor (a woman who donates her eggs) and a gestational carrier (a woman who carries the baby). A gestational carrier is not genetically related to the baby she is carrying. A traditional surrogate, on the other hand, is a woman who carries a baby created with her own egg. A traditional surrogate is genetically related to the baby she is carrying. Most fertility clinics and fertility lawyers recommend the use of a gestational carrier over a traditional surrogate as they believe it is preferable to avoid a genetic connection between the carrier and the baby. Despite the significant distinction between gestational carriers and traditional surrogates, gestational carriers are often referred to as surrogates.
If you intend to embark upon this process in Canada, it is important to begin your journey by becoming familiar with the Assisted Human Reproduction Act (AHRA), federal legislation that applies in every province within the country. This statute provides a legal framework that must govern your activities. It would be wise to consult with an experienced fertility lawyer to learn how the AHRA may impact your efforts to build your family with the assistance of a gestational carrier and an egg donor in Canada.
Surrogacy in Canada
What is Legal?
It is legal to have a gestational carrier or surrogate in Canada, but only if she carries your baby without being paid a fee to do so. Such an arrangement is often referred to as “altruistic surrogacy." You may reimburse an altruistic surrogate for her reasonable out-of-pocket expenses incurred in relation to the surrogacy. For example, should your surrogate require transportation to a medical appointment that relates to the surrogacy, you may reimburse her for the cost of the transportation. It is recommended that you request receipts to properly establish that you are reimbursing your surrogate’s out-of-pocket expenses. It is also important to enter into a legal agreement with your surrogate setting out, among many other things, a clear ceiling on reasonable expenses.
What is Illegal?
It is illegal in Canada to pay or offer to pay a woman to be a gestational carrier or surrogate. Such an arrangement is often referred to as a “commercial surrogacy."
It is also illegal in Canada to pay or offer to pay another person to arrange for the services of a surrogate. In the event that you receive an offer of help in finding a surrogate, it would be wise to seek clarification from an experienced fertility lawyer about the impact of the AHRA on your relationship with such an individual.
Egg Donation in Canada
What is Legal?
It is legal to use donated eggs in Canada, but only if they have not been purchased from the donor or someone acting on behalf of the donor. You may reimburse an egg donor for her reasonable out-of-pocket expenses incurred in relation to the donation. Receipts and a legal agreement are also recommended in this scenario.
What is Illegal?
It is illegal in Canada to purchase eggs from a donor or anyone acting on behalf of a donor. It is also illegal in Canada to advertise for the purchase of eggs.
When the Legalities Are Uncertain
In the process of attempting to build your family in Canada, if you have even the slightest question or concern about the legalities of any activities that you are contemplating or that are being suggested to you, I cannot emphasize strongly enough the importance of asking an experienced Canadian fertility lawyer to help you understand the impact of Canada’s AHRA on these activities.
The reality is that it is not always possible to identify women in Canada who are willing to act as surrogates and egg donors without receiving compensation. As a result, options for gay men hoping to build their families with the help of a surrogate and an egg donor in Canada are limited.
It has become increasingly common for gays in Canada to seek surrogates and egg donors in countries where the legal environment is friendlier to commercial surrogacy and egg donation. One of the closest and most popular of these destinations is the United States. Some Canadian gay men work with physicians at fertility clinics in the United States. They then choose egg donors presented to them through the fertility clinic’s egg donor program, or through an American egg donor agency. They choose their gestational carrier through an American surrogacy agency.
If you are a gay man in Canada considering using an American fertility clinic, egg donor agency and surrogacy agency to create your family, I strongly encourage you to retain fertility lawyers in the United States and in Canada who will help you understand applicable laws, including the laws that will govern your baby's legal parentage, nationality and immigration status, and the process you will go through following the birth to secure your status as a family.
In addition, I encourage you to develop a solid understanding of the fertility clinic and agency landscape in the United States. There are more than 450 fertility clinics in the United States and a plethora of egg donor agencies and surrogacy agencies. The playing field among American fertility clinics is not level; some offer much better odds for success than others. In addition, some fertility clinics are more sensitive than others to the unique needs of gay men. While many egg donor agencies and surrogacy agencies in the United States are highly professional and follow best practices, some do not; like fertility clinics, some agencies are better suited than others to the needs of gay men.
You will benefit from taking the time to understand the characteristics of a cutting edge American fertility clinic, and then from working only with such a clinic that also truly understands the unique needs of gay men aspiring to be dads. Understand what the experts consider a “best practice approach” on the part of an egg donor agency and a surrogacy agency and work only with those that adopt such an approach and also have experience working with gay men. If you take the time to become knowledgeable and discerning you will put yourself in an excellent position to make intelligent choices.