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New legislation: a mixed bag for surrogacy in Ontario

Although the new All Parents Are Equal Act contains positive provisions related to gamete donation, the legislation contains few benefits when it comes to surrogacy agreements, Toronto fertility lawyer Sara Cohen tells Law Times.

“The only benefit here for surrogates is that it costs people less for getting the parentage side done,” explains Cohen, founder of Fertility Law Canada at D2Law LLP.

As Law Times reports, the Act, passed in November 2016, changes the practice of requiring intended parents to obtain a judicial declaration of parentage or to adopt a child after the birth of the child, with one where parties enter into a surrogacy agreement and obtain independent legal advice before conception. They can now rely on an administrative process for registering parentage by consent after a seven-day waiting period.

It also provides in s. 9 that the surrogacy agreement is legally unenforceable, but it then says it may be used as evidence of the parties’ intentions, says the article.

Cohen says the new seven-day waiting period is not appropriate especially in a gestational surrogacy situation, as: “in reality, you don’t have a situation where gestational surrogates try to keep babies. 

“It does not happen frequently in Canada,” she adds.

“Unfortunately, it is more likely that parents will change their mind, but now the agreement is unenforceable against the intended parents, too. It’s the wrong move,” says Cohen.

Prior to the new legislation, Cohen says, agreements relating to gestational surrogacy — where the birth parent has no biological relationship to the child, representing an estimated 95 per cent of surrogacy in Ontario — were at least likely to be enforceable in terms of who is a parent.

In contrast, she says, traditional surrogacy agreements, where there is a biological connection between the surrogate and the baby, were likely unenforceable.

Cohen tells Law Times that she is concerned that it has been left to the parties to confirm that they have met the requirements of the Act and that the surrogate consents to relinquishing the child. 

“We had a situation where judicial oversight stopped fraud in the traditional surrogacy context, and we had growing legitimacy in gestational surrogacy,” she says.

“One day we will look back on this with regret. How could we let court oversight of the agreement and preconception concerns go?”

The bill also gives a surrogate seven days to change her mind after birth and requires joint medical decision-making between the parents and the surrogate in the interim in some situations, which Cohen says is a problem.

“This is an anomaly that seems to come out of left field, based on a model more akin to adoption than third-party reproduction,” she says.

“This could prove nightmarish for hospitals and health-care providers if the child requires medical care, especially if the surrogate is gone.”

Cohen tells Law Times that since the legislation came into force on Jan. 1, she has been fielding phone calls from hospitals. 

“Hospitals have had lots of questions for me, trying to understand the risks they’re taking,” she explains.

“They have definitely been confused about who they should be listening to, whose names to put on the documents and any possible liability on them. The surrogate usually goes home the same day as the birth. Should the nurse try to figure out what the surrogacy agreement says?”

At the same time, Cohen says the registration part of the process has been well received by clients. 

“The registration process for parentage has gone well.

“It is one week or two faster than when we had court applications. So far, the process is a bit difficult, but when people become more familiar with the documents, that will sort itself out.”

Cohen explains that there are two steps to the process — having the agreement in place and the registration process.

“Quite frankly, the judicial declaration was the more expensive of the two processes. It’s encouraging that costs are down.”

To Read More Sara Cohen Posts Click Here
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