Sperm donor, surrogacy and co-parenting laws in Canada

Like the UK, Canada is one of the most progressive nations regarding sperm donor and artificial reproduction laws, and LGTB parenting rights. Artificial insemination and other ART procedures are opened to lesbians and singles, free sperm donors can be anonymous or known, and same sex parenting is legally possible. Legislation related to adoption, surrogacy and parentage differs according to provinces and territories. Additionally, co-parenting arrangements involving more than two parents are not legally binding, as is the case for most countries throughout the world.

Donor Conception (embryo, egg and sperm donation) in Canada

General

The Assisted Human Reproduction Act of 2004 governs reproductive technologies at a federal level in Canada. Assisted Human Reproduction Act (S.C. 2004, c. 2) / Department of Justice, Canada: laws-lois.justice.gc.ca

Assisted Human Reproduction Canada (AHRC), federal regulatory agency

Assisted Reproductive technology (artificial insemination, IVF, etc.)

Discrimination on the basis of their sexual orientation or marital status is prohibited: lesbians and singles have full access to artificial insemination and ART procedures.List of fertility clinics / Canadian Fertility and Andrology Society:

List of fertility clinics / Canadian Fertility and Andrology Society: cfas.ca

Self-insemination

As self-insemination is not specifically mentionned in the Assisted Human Reproduction Act, there is some uncertainty regarding as how it should legally be treated.

Local specificities / exceptions: The province in which the child is born will govern the parentage attribution process.

Identifying information on embryo, egg and sperm donors

Both known and anonymous sperm donations are allowed and regulated by the same law. A sperm donor has the choice to share his identity or remain anonymous.

Paid or freem sperm donors?

Purchasing, offer to purchase or advertise for the purchase of sperm or ova from a donor is strictly forbidden. However, advertisement for altruistic donors is not prohibited. Reasonable expenses reimbursements are authorized and should soon be regulated. The Reproductive lay in Canada / Sherry Levitan, Barrister and Solicitor:

The Reproductive lay in Canada / Sherry Levitan, Barrister and Solicitor: fertilitylaw.ca

Surrogacy in Canada

Altruistic surrogacy

Altruistic surrogacy is allowed but still neither fully legally controlled nor protected.

Local specificities / exceptions:Parentage conflicts may arise and be treated differently depending on the state where the surrogacy took place.Surrogacy in Canada / Sherry Levitan, Barrister and Solicitor: fertilitylaw.ca

Commercial surrogacy

Commercial arrangements involving a surrogate mother are strictly forbidden, as is advertisement for paid surrogacy.Prohibited Activities, Assisted Human Reproduction Act (S.C. 2004, c. 2) / Department of Justice, Canada: laws-lois.justice.gc.ca

Surrogacy abroad

Assisted Human Reproduction Canada (AHRC) does not prohibit surrogacy abroad as such, but strongly advises to get medical and legal counseling before undergoing such a procedure.

Local specificities / exceptions:Parentage rights in this case are a very sensitive matter as they depend on the legislation of the country where the surrogacy takes place and the state of residency of intented parents.

Can gay dads have a surrogate child?

In the case of surrogacy, pre-birth surrogacy arrangements are not enforceable by law and a post-birth court application is required to establish the parentage of intended parents. If one of them is the biological father, his partner is allowed to apply for a declaration of parentage. If none of the intended fathers is biologically related to the child, adoption laws apply.

Local specificities / exceptions:Legal procedures in order for gay dads to obtain parentage of a child born out of a surrogacy arrangement depend on each jurisdiction.Declaration of Parentage in Canada / Surrogate Motherhood

Adoption in Canada

Access to general adoption

Adoption is regulated provincially in Canada. This means that the rules and legislation concerning adoption vary according to the law of each individual province and territory. Additionally, single individuals can apply to adopt.

Local specificities / exceptions: Common law and same sex couples can apply jointly for an adoption in almost every Canadian State, except for New Brunswick where the act is being revised.Adoption Resource Guide for Canadians.

Step child adoption for same sex couples

Since 2005, same sex couples have access to civil marriage on the same basis as opposite sex couples and share the exact same rights.

Local specificities / exceptions: Conditions for obtaining the right to adopt one’s partner step child depends on provincial legislation.Civil Marriage Act: laws-lois.justice.gc.ca

Co-Parenting in Canada

Only 2 co-parents involved

Generally, the woman who gives birth is presumed to be the child’s mother. The second legal parent can be of the same or opposite sex and does not need to be the biological parent of the child. Same Sex Spousal and Family Rights in CanadaSame Sex Spousal and Family Rights in Canada

More than 2 co-parents involved (e.g. 1 couple + 1 single or 2 couples)

Currently a Canadian child can only have up to two legal parents. Co-parenting contracts arenot legally binding, still they are recommended as they contribute to clarify parenting roles of all people involved.