Quick overview of Canadian surrogacy laws

Thursday, April 28, 2022

I was delighted when Canadian surrogacy lawyer (and mum through surrogacy) Cindy Wasser from Hope Springs Fertility Law recently sent through to mutual clients her quick guide to surrogacy law in Canada. This is the best guide I have ever seen setting out the processes of becoming parents through surrogacy in Canada. Here is Cindy’s guide, published with her permission:

Establishing Parentage in Each Province*

In Canada, parental rights are determined by the laws of each Province. There are some variations in the method and timing of birth registration but in all cases pending the legal process for registration and obtaining birth certificates, the intended parents have physical custody of their newborn at birth. Where court orders are obtained to name the parents, the judicial order is made retroactively to the time of birth.

Foreigners who wish to keep the surrogate named as the mother on the birth certificate should always confirm her willingness to do so as well as her willingness to sign any documents required in their home country. Where the surrogate is named as a parent on the birth certificate, she will need to assist with obtaining the passport and providing a travel consent letter.

All persons born on Canadian soil are deemed Canadian citizens automatically at birth. As such, they are entitled to a Canadian passport which may be applied for by the established parents. There must be a birth certificate to do so. In most large cities this can be obtained in one day (and sometimes less) pending proof of travel. International intended parents are advised to purchase flexible return plane tickets.

If the intended parents require both an ovum and sperm donor and will have no genetic link to the child, they can only establish parentage in these provinces: Ontario, Manitoba, Saskatchewan and British Columbia.

Ontario

Two options: Statutory Declaration (administrative) or a court-ordered Declaration of Parentage
The Statutory Declaration cannot be signed by the surrogate until seven days post-birth, but the intended parents are considered the legal parents
Court order documents can be signed and submitted immediately
Up to four parents can be named
No genetic connection is required
The surrogate can stay on the birth certificate if required
The birth certificates are usually received 2 weeks post-birth
International intended parents and their newborn can usually go home 2-2.5 weeks after the birth

British Columbia

Two options: Statutory Declaration (administrative) or a court-ordered Declaration of Parentage only if necessary
The intended parents named in the surrogacy agreement must be registered on the birth certificate
Up to six parents may be named
No genetic connection is required
The surrogate cannot be on the birth certificate
The Statutory Declaration can be signed immediately
The birth certificates usually received 1-2 weeks post-birth
International intended parents and their newborn can usually go home 2-3 weeks after the birth

Manitoba

The surrogate is initially listed on the birth certificate and can name the genetic father
The intended parents apply to the court for a Declaration of Parentage
No need for a genetic connection
The Order can be obtained within several days
The new birth certificate can be obtained in approximately 3 weeks
Ontario residents can obtain a court order in Ontario ordering the registration in Manitoba regardless of their genetic link to the child

Saskatchewan

The surrogate is initially registered as the mother
A Statutory Declaration (administrative process) is now law but not yet implemented by the Registrar so a Declaration of Parentage is done via court order is required to amend the birth registration
No genetic connection is required
The birth certificates are issued within 1 week of receiving the court order
International intended parents and their newborn can usually go home 2 weeks after the birth
Ontario residents can obtain a court order in Ontario ordering the registration in Saskatchewan

Alberta

Declaration of Parentage is done via court order
The court order is obtained within 3-4 days of naming the intended parents
The surrogate can stay on the birth certificate if required
There must be a genetic link to at least one of the intended parents. If only one of the parents will be listed on the birth certificate, that parent must have the genetic link
International intended parents and their newborn can usually go home 3-4 weeks after the birth

New Brunswick

Declaration of Parentage is done via court order
The surrogate is initially listed on the birth certificate along with the Genetic Parent- this can take 2-3 weeks
An Application is brought to the court to register the birth or amend the registration to have only the intended parents on the birth certificate- this can take another 1-2 weeks
The new birth certificate will take another 2-3 weeks to obtain
The surrogate can stay on the birth certificate if required and can be named alone
There must be a genetic link to at least one intended parent
International intended parents and their newborn can usually go home 2-3 weeks after the birth with the initial birth certificate and the surrogate’s consent to travel

Newfoundland

Declaration of Parentage is done via court order
The surrogate is initially listed on the statement of live birth by the hospital and on the registration of birth
An application is brought to the court to register the birth or amend the birth certificate to have only the intended parents on the birth certificate
A genetic link is not required but DNA must eliminate the surrogate as the biological parent
International intended parents and their newborn can usually go home 4-6 weeks after the birth

Prince Edward Island

New law as of March 2021 allows for a Statutory Declaration of Parentage (administrative process) allowing the Intended Parents to be immediately listed on the birth certificate but so far there are no forms available and it has not been done
No genetic link is required
The surrogate is initially listed on the birth certificate
An Application is brought to the court to declare that the intended parents are the only parents and remove the surrogate as the mother
The order also directs that the registration be amended
The new birth certificate can be obtained within 1-2 months after the birth

Quebec

Surrogacy births may be registered in one of three ways: 1) the surrogate and the genetic father on the birth certificate; 2) the surrogate alone on the birth certificate or; 3) the genetic father alone on the birth certificate
The other intended parent will have to adopt but foreigners cannot adopt
International intended parents and their newborn can usually go home 4-6 weeks after the birth with permission from the surrogate to travel if she is on the birth certificate
Ontario residents can obtain a court order in Ontario ordering the registration in Quebec
A Bill has just been placed before the Legislative Assembly to implement a court-ordered Declaration of Parentage as well as a Statutory Declaration process and dispense with the genetic link requirement but this may take a year or two to be passed into law

*Please note this is not provided as a substitute for proper legal advice but merely as a guide to assist agencies and intended parents with a brief overview of the birth registration process. Please feel free to contact Hope Springs Fertility Law™ for legal advice. The information within was created with gratitude to several contributors: Doreen Brown, Ellen Embury, Anne Fagan, Robynne Kazina, Jocelyn Léger-Nowlan, Sophie MacDonald, Marisha Paquin, Elise Schopper-Brigel and, Terry Sheppard