What you need to know about Canadian Fertility Law

Attorney Sara Cohen of Fertility Law Canada at D2Law LLP answers common questions about the legal  process for Canadian intended parents who are pursuing surrogacy in the United States or elsewhere.

Overview

Summary

How can Canadian citizens and Permanent Residents establish parentage for their child born via surrogacy in the U.S.?

So as long as one parent is a citizen it’s actually very easy there used to be a law that made it a requirement that that citizen had to have a genetic connection to the child but that was challenged as being unconstitutional a couple of years ago. So now, as long as one citizen of Canada is the legal parent of the child, the child is entitled to Canadian citizenship. There are certain exceptions to that but the general rule is that that child should be a Canadian citizen or should at least be entitled to Canadian citizenship. A child who is born to a Permanent Resident of Canada is not entitled to citizenship and will have to be sponsored and that’s a different process. And for that they definitely need an immigration lawyer.

What documents are required in order to establish Canadian citizenship?

There’s a certain application that has to be filled out. We need a copy of the surrogacy agreement, we need the court order — if there is a court order. We much prefer a post-birth order as opposed to a pre-birth order so a lot of my clients who do surrogacy in places like California that have pre-birth orders also get a post-birth order. From a Canadian perspective, we are much more comfortable post-birth order. We are not signatories to the apostille so we don’t apostille our documents here in Canada. We do require DNA testing which, only if there is a genetic connection, is relevant. It’s not relevant if there’s not a genetic connection. We also need a document proving certain things: We need the surrogate signing away her parental rights, we need a document from the clinic that this was a surrogacy done through IVF, we need a document from the hospital that there are no outstanding medical bills. And we need a birth certificate as well as the parents’ passports if they have color copies, et cetera. Parent’s birth certificate if they’re born in Canada — not relevant if they weren’t born in Canada, etc. As long as we have all those documents in order, we’re able to bring an application. I do have to say something that I think is probably surprising to people is that it takes a long time for the application to approve. So it often will take at least a year for a child who’s born to Canadian citizens but born abroad through surrogacy, it often takes at least a year to get them their Canadian citizenship. That doesn’t mean the child can’t go back into  Canada. They can go into Canada and stay there, we’ve never had a problem with that and I don’t anticipate us having any issue with that but the child won’t get a Canadian passport or be a Canadian citizen until usually about a year passes.

What documents will intended parents need to cross the Canadian border with their child?

As long as we have the passport and a birth certificate of the child, then we don’t have any problems crossing the border.

Are the documents to establish Canadian citizenship standardized?

So they’re not standard formats, so most of my clients work with a Canadian lawyer who does help them through this process. There is a standard citizenship application that must be filled out but the actual documents that we need, in general, they’re not standardized.

How can intended parents obtain a post-birth order and how long does this process usually take?

So I’ve had success with some lawyers who are used to dealing with international intended parents and even though they only typically might get a pre-birth order, we require them to get a post birth order too and they’ve been able to do so. It’s definitely taken at least a couple of weeks in our experience but I couldn’t say. 

Do intended parents need to wait to re-enter Canada with their baby until they have all these documents?

No. It’s easy enough to travel into Canada because traveling between America and Canada is very, very simple. Getting the citizenship is what you need the post-birth order for.

What issues may prevent Canadian intended parents from successfully bringing their child back to Canada?

We know of some famous decisions that happened, not to children born in the United States but to children who were born, I believe they were born in India, etc. And this was before the law changed when there was a requirement for a genetic connection to a Canadian citizen. We recognize egg donation (parentage through egg donation) here in Canada, we recognize parentage through surrogacy here in Canada other than in Quebec. So really, there’s no reason not to recognize the parentage of these parents whether or not they have a genetic connection. So now that we’ve changed the law, it’s much, much easier.

While waiting for the Canadian citizenship application to be processed, can the child receive provincial healthcare in Canada?

So the baby can get healthcare. Technically, the child is under the custody of their parents who are entitled to provincial healthcare in Canada. They are also entitled to that provincial healthcare. 

If one or both intended parents are Permanent Residents of Canada, what options do they have?

So in that situation I’ll tell you honestly I refer them to an immigration lawyer because that is beyond my fertility legal expertise but I have an immigration lawyer I deal with very frequently and that’s who handles that situation. I know for a fact that the child is not entitled to citizenship but can be sponsored by the Permanent Residents.

How long is the current wait time for intended parents to match with a surrogate in Canada?

In terms of what it looks like on the ground, I think the time you’re awaiting really depends agency by agency. So one agency that I think is excellent and does fabulous work, it really does take 18 months to two years to find a surrogate. A very, very long time. Other agencies I would say are closer to about nine months to one year but no situation that I know of can you literally just sign up with an agency and tomorrow you’re gonna have a surrogate or it happens but extremely rarely so that shouldn’t be the expectation of anyone doing service in Canada. And my experience with my Canadian clients who have gone to the United States they can find a service faster, they just can.

Is egg donation legal in Canada?

It is legal to do egg donation in Canada but, similar to surrogacy, it’s not compensated. So we reimburse egg donors and we have a list from health Canada what we are allowed to reimburse them for. If it’s not on that list, we’re not allowed to reimburse them for whatever it is that we seek to reimburse them for. An egg donor has to be at least 18 years old or older. Something that is stronger in the United States than in Canada is access to egg donors in the sense that, we have egg donors in Canada but we’re a smaller population and smaller number of donors. So it’s totally doable, it’s not like we’re suffering in the sense that we can’t find egg donors but it’s not the same kind of numbers that you’re looking at in the United States.

If Canadian intended parents choose egg donation, do they have to disclose that the child is not genetically related?

So in Canada you can choose anywhere from anonymous, open ID (which is what we call open identification or known donation). There is certainly a push towards a known donation and I’ll tell you that’s where I’m most comfortable but I have many clients who choose anonymous donation too. So there’s nothing illegal about anonymous donation in Canada. It’s perfectly legal, it’s legitimate, it’s doable, but there’s definitely thoughts that people many people are concerned about what happens if a child has questions when they’re older, etc. So a lot of people either go with known donors or choose the middle ground which is basically when the child reaches the age of 18, they’re entitled to get information (if they want it) about who the donor is. I just think it’s very important that people make educated decisions and don’t feel they must choose one or the other but have the opportunity to choose what’s right for them. There’s no registry, there’s no one they have to advise that the child is not genetically related to them. You might want to tell your child’s doctor for medical reasons but other than that, there’s no reason.

If Canadian intended parents use all donor material and a surrogate, will that affect Canadian citizenship?

Not anymore. So it would have before if we needed a genetic connection to the Canadian citizen intended parent but we don’t need that anymore as long as they are the legal parent or recognized as a legal parent in the jurisdiction where the baby’s born.

What information is needed from the baby’s genetic testing in order to obtain Canadian citizenship?

I think really what they want to know is that also the baby’s not genetically related to the surrogate. So that’s also what they’re looking for. 

Do the Canadian citizenship laws change if the intended parents use a sperm donor?

In Canada actually we import something like 95% of our sperm from the United States because you can’t pay donors in Canada so we really stopped getting a lot of sperm donors in Canada, at least people who want to donate anonymously. People come to clinics and they say this is my friend, my friend would like to donate for me and we do that all the time. The law about who is a parent is different in every province so some provinces have very strong laws that a donor is not apparent and some are weaker. So Ontario and British Columbia and now even Saskatchewan have really the strongest laws in the country that a donor is not a parent, can’t be a parent, etc. And there’s not a concern about that. The agreement is actually unenforceable but it counts as evidence of the intention about who is a parent and all the case law goes to intention that makes someone a parent etc. But yes, again, most of it is imported from the United States.

If Canadian intended parents come to the U.S. for their IVF cycle, does that affect the citizenship process?

Because the law says it’s illegal to pay someone to arrange the services of a surrogate mother, or it’s illegal to pay a surrogate mother for her services, or it’s illegal to purchase ova from a donor, or a person acting on behalf of a donor, that payment’s the part that’s illegal. So ideally, if possible, that payment shouldn’t be made from Canada and it’s not about tracing it. It’s okay if it can be traced, that’s not the question. The question is: does Canada have jurisdiction over that payment or not? So ideally, if you’re doing egg donation even to your own body in the United States, that payment should be made from the United States, or at least not from Canada.

When should Canadian intended parents first contact a Canadian fertility attorney?

So, because that payment issue comes early, I would first have them have a consultation with the Canadian lawyer, then deal with the American lawyers to do all the American surrogacy. And then, when they reach halfway through pregnancy or so, start preparing for all the citizenship documentation. But I do think Permanent Residents in particular need to understand the limitations: the fact that their child will not be a citizen automatically of Canada, etc. They’re just not entitled to that citizenship so I do think someone should understand that if they go forward with surrogacy in the United States.

What are your legal costs and what’s services do they cover?

The way we end up doing it is a flat fee basis so we do a process whereby we’re usually

first helping people by introducing them to American surrogacy agencies, etc., who we

think are good, talking about the Canadian legal aspects. So, for example, in Canada it’s illegal to pay a surrogate and punishable by 10 years in jail and/or $500,000 so it’s very important that Canadians know how to make any payments that they’re making to a surrogacy agency or for a surrogate without breaching Canadian law. So we go through that at the beginning with them. We look over pre-birth orders, we deal with post-birth orders to make sure they’re in a wording that’s going to be recognized under Canadian law. And then we just help with the citizenship application. So usually we charge, in Canadian dollars, about $4,500 which is probably about $2,800 American dollars.

About Sara Cohen

Sara R. Cohen, LL.B. is a fertility law lawyer based in Toronto, but with clients throughout Canada and beyond.  Sara is the founder of Fertility Law Canada and a partner at D2Law LLP where her practice is exclusively devoted to fertility law.  She approaches fertility law with the compassion, empathy and respect it deserves.

After honing her skills in the commercial litigation group at one of Canada’s preeminent national firms on Bay Street, Sara made the leap and translated her passion into a career.  Sara regularly acts on behalf of intended parents, surrogate mothers, egg donors, sperm donors, embryo donors, and other people involved with reproductive technologies. Sara is frequently before the Ontario courts in obtaining declarations of parentage and non-parentage on behalf of intended parents, both Canadian and international.  She also provides legal advice to domestic and international fertility clinics, hospitals, cryobanks and businesses in the fertility industry. Sara’s passion is to help build families and she considers herself very fortunate to have such a fulfilling career.

Sara is an adjunct professor of law at Osgoode Hall Law School where she teaches reproductive law, an elected fellow of the Academy of Adoption and Assisted Reproductive Attorneys (AAAA), as well as the only Canadian representative on the Executive Council of the American Bar Association’s Family Law Section, ART Committee.  She is a Director of the Canadian Fertility and Andrology Society (CFAS), the President of Fertility Matters Canada, and the legal representative on the Ethics Committee at TRIO Fertility, one of the largest and most well-respected fertility clinics in Canada.  Sara was the co-chair of the first  national conferences on fertility law in Canada, and was recently recognized as one of the Top 25 Most Influential Lawyers in Canada.  Sara is also a long term Director of Canadian Friends of Haifa University.

Sara has been widely quoted in the media about issues relating to fertility law in Canada, including CBC, CTV, National Post, The Globe and Mail, The Toronto Star, Global News, and Macleans.  She is an in-demand speaker both domestically and abroad, having been invited to speak and lecture at Osgoode Hall Law School, Suffolk University Law School, McGill University Law School, McMaster University, University of Toronto, Academy of Adoption and Assisted Reproductive Technology Attorneys (AAAA), the Ontario Ministry of the Attorney General, and on behalf of the Canadian Bar Association, Osgoode Professional Development, Law Society of Upper Canada, American Bar Association, CLE BC, Merck, Canadian Fertility and Andrology Society, Ontario Bar Association, Pediatric Oncology Group of Ontario and Southwestern Ontario Donor Conception Network.  Sara also writes widely about fertility law issues and has been published in the Journal of Obstetrics and Gynaecology Canada, the Huffington Post, Pink and Teal, Lawyers Weekly and Creating Families.  She is the winner of a 2012 Clawbie for Best New Blog, Fertility Law Canada Blog and the 2013 Precedent Setter Award.  Sara is an advocate for all parties involved in third party reproductive technology.  Sara loves what she does and it shows!

Next Steps

To learn more about the fertility laws in Canada before planning your egg donation and/or surrogacy journey,  please contact Sara Cohen via her website www.fertilitylawcanada.com