For anyone considering a surrogacy agreement – where the child is to be born – it is worth considering before the conclusion of the surrogacy agreement. For non-Canadians considering the use of a Canadian surrogate, you should consider the following: this means that a surrogacy contract must follow the laws of the province in which the contract is signed. There are two main legal elements for the surrogacy process in Ontario: (1) agreement and counseling and (2) declaration of ancestry**. At the beginning of the surrogacy process, the intended parents meet with a lawyer to discuss the details of the agreement. The lawyer for the intended parent(s) will provide legal advice and draft a surrogacy agreement. If there is a known egg or sperm donor, the lawyer for the intended parents will also establish a donor agreement. The surrogate mother and, if applicable, the donor(s) then inquired into their own lawyers and call an independent legal advisor („ILA“). The lawyers discuss and conclude the agreement in consultation with their clients. It is very important that these steps take place before the embryo is transmitted (or that in vitro fertilization occurs in case of sperm or egg).
The second legal element of the process is called the „descent statement.“ This is the part of the process that ensures that the intended parents are legally recognized as parents of the child (unlike the surrogate mother). Although much of the paperwork is done before the birth, the parties can only sign after the birth of the child. The lawyer sends signature documents and the originals are returned to the lawyer. Once the documents are gathered, the lawyer will file the documents in court. At a later date, the lawyer will appear before a judge and obtain a court order declaring the intended parents as the legal parents of the child. Intended parents will then be able to use the court order to obtain a birth certificate in Ontario.**Please note that as of January 1, 2017, most intended parents will be able to avoid declaring filiation, provided they take certain steps in advance. In most cases, parents whose baby is born in Ontario through surrogacy can register the baby`s birth shortly after birth without a court order. At Lisa Feldstein Law Firm, we also help our clients communicate agreements to the hospital to ensure the process runs smoothly, such as birth plan review, birth registration assistance and other aspects of the process. We are „on demand“ around the delivery period to answer questions from customers and hospital staff.
For those who are more visual, below is an overview of the surrogacy contract process. Surrogates cannot be paid in Canada. However, they may be reimbursed for their surrogacy-related expenses. OSO provides the surrogate with charts and information on how to monitor expenses to ensure the process is going smoothly. As an experienced lawyer for reproductive technology, Shirley can help you reach an agreement to clarify all parties involved and avoid any misunderstandings on this very emotional journey. The new parentage rules of the All Families Are Equal Act (Parentage and Related Registrations Statute Amendment), 2016, N/A 2016, c. 23 („Act“) contain rules for determining filiation when surrogacy is used. . .
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