By Melanie de Wit JD MPH (Borden Ladner Gervais LLP Health Law Group) and Sara Cohen LLB (Fertility Law Canada at D2Law LLP)
A surrogate is a female person who, with the intention of surrendering the child at birth to another individual(s), carries an embryo or fetus that was conceived by means of an assisted reproduction procedure. Very frequently the child is genetically related to the intended parent(s). The surrogate and intended parent(s) typically seek assistance from a lawyer and nearly always prepare a written surrogacy agreement. The overwhelming majority of surrogacy arrangements are positive experiences for all involved; there has never been a reported case in Ontario involving a dispute about parentage following the infant's birth. Yet, for hospitals who care for these patients, questions arise about how best to accommodate surrogacy births while being cognizant of the legal issues.
As lawyers for hospitals and intended parents/surrogates, we have summarized the law impacting the provision of care to surrogates and children born through surrogacy, and offer some practical suggestions in this regard.
In Canada, surrogacy is regulated by the Assisted Human Reproduction Act (AHRA). Surrogates must be 21 years or older, and the AHRA prohibits payment to the surrogate except for the reimbursement of reasonable expenses related to surrogacy. Legal parentage of the child born through surrogacy, however, is regulated by provincial law.
A surrogacy agreement is considered a private matter involving two or more parties: the surrogate, her partner (if any), and the intended parent(s). Although Ontario courts consistently recognize surrogacy agreements, it is not yet clear whether an agreement is enforceable if the surrogate revokes her consent after the infant's birth. The Hospital should not comment on the merits of a surrogacy agreement. While the expectation of all parties may be that the intended parents will soon be the legal parents of the infant, until a court order is made, the agreement is not necessarily enforceable.
From the perspective of providing care to the surrogate, the surrogate has the right to make decisions about her body, including the fetus. Choices should be offered in accordance with the best interests and wishes of the surrogate. In one sense, the surrogacy agreement is akin to a birth plan: it indicates the parties' intention, but the parties may deviate from those intentions when the time arrives to make a decision. For example, the agreement may specify that the intended parents will be present for delivery, but the surrogate may change her mind and ask that they remain in the waiting room.
The law in Ontario acknowledges the birth mother as the mother, whether or not she is genetically related to the infant. This means that the surrogate is listed as the mother on the Notice of Live Birth. After the child's birth, intended parent(s) apply to the court to formally become the infant's legal parents.
Because the surrogate is legally the infant's mother until a court declares otherwise, the surrogate is a decision-maker for treatment provided to the infant. While the surrogate and intended parent(s) nearly always agree on treatment to be provided in the infant's best interests, when a disagreement occurs, the clinical team must be mindful that the surrogate is one of the infant's decision-makers and proceed cautiously. Information about the surrogate or newborn cannot be shared with the intended parent(s) without the surrogate's consent, which should be documented. The surrogate's consent should also be obtained with respect to newborn access and feeding by the intended parents, and discharge of the infant to the intended parent(s).
Across Canada, the labour and delivery of the surrogate are reimbursed by provincial healthcare, including OHIP in Ontario. Ontario has recently taken the position that the health care costs for an infant after delivery are not reimbursed by OHIP where the intended parents are not OHIP insured. It is prudent to document the names and contact information of the intended parent(s), along with a copy of their identification, and if the intended parent(s) is not an Ontario resident, to alert the hospital's business office so that appropriate arrangements can be made.
Hospitals should have a policy which prospectively addresses the unique needs of a surrogate delivery. In addition to the above, consideration should be given to patient and family centered practices for the intended parent(s), such as providing them with a hospital bracelet with the infant's name and a space to spend time and perhaps breastfeed the infant. A social worker consultation during the prenatal period can carve the way for a smooth birth experience for all those involved. In surrogacy, the goal of the labour and delivery unit is slightly broader than usual: a healthy (and happy) surrogate, baby, and intended parent(s).