There are two main legal elements to the surrogacy process in Ontario: (1) the agreement and advice, and (2) the declaration of parentage**.
At the beginning of the surrogacy process the intended parents meet with a lawyer to discuss the details of the arrangement. The lawyer for the intended parent(s) will give legal advice and draft a surrogacy agreement. If there is a known egg or sperm donor, the lawyer for the intended parent(s) will also draft a donor agreement. The surrogate and donor(s), if applicable, then seek their own lawyers and obtain independent legal advice (“ILA”). The lawyers speak and, in consultation with their clients, finalize the agreement. It is very important that these steps happen before the embryo is transferred (or in-vitro fertilization occurs, in the case of donor sperm or egg).
The second legal element in the process is called a “declaration of parentage”. This is the part of the process that ensures the intended parents are legally recognized as the parents of the child (as opposed to the surrogate). Although much of the paperwork is completed prior to the birth, the parties cannot sign until after the child is born. The lawyer will send out documents for signature and the originals are returned to the lawyer. Once the paperwork is assembled the lawyer will file the paperwork in court. At a later date the lawyer will appear before a judge and obtain a court order declaring the intended parents to be the legal parents of the child. The intended parents can then use the court order to obtain a birth certificate in Ontario.
**Please note that effective January 1, 2017, most intended parents will be able to avoid the declaration of parentage provided they take certain steps in advance. In most cases parents whose baby is born in Ontario via surrogacy will be able to register the baby’s birth shortly after the birth without a court order.
At Lisa Feldstein Law Office we also assist clients with communicating arrangements to the hospital to ensure the process goes smoothly, revising birth plans, assisting with birth registrations and other aspects of the process. We are “on call” around the time of the delivery to answer questions from clients and hospital staff. For those who are more visual, below is an overview of the surrogacy contract process