Surrogacy Law in Alberta: An Overview for the LGBTQIA2S+ Community

Surrogacy, a practice where a woman carries and gives birth to a child for another couple or individual, has become increasingly popular in recent years. For LGBTQIA2S+ couples, surrogacy often offers a viable path to parenthood. However, navigating the legal complexities of surrogacy can be challenging, particularly in a province like Alberta, where specific legislation governing the practice is limited. This article provides a comprehensive overview of surrogacy law in Alberta, focusing on its implications for the LGBTQIA2S+ community.

Legal Framework and Key Considerations

While Alberta does not have dedicated legislation for surrogacy, the overarching legal framework is primarily provided by the Assisted Human Reproduction Act (AHRA) of Canada. This federal legislation establishes the general principles and guidelines for assisted reproductive technologies (ARTs), including surrogacy.

Key points from the AHRA relevant to surrogacy include:

Prohibition of Commercial Surrogacy:

The AHRA strictly prohibits commercial surrogacy, which involves paying a surrogate for carrying and giving birth to a child. Only altruistic surrogacy, where the surrogate receives only reimbursement for expenses related to the pregnancy, is permitted.

Parental Rights:

The AHRA outlines a framework for determining legal parentage in cases involving ARTs. However, the specific application of these provisions to surrogacy arrangements, especially for LGBTQIA2S+ couples, can be complex.

Unique Considerations for LGBTQ+ Couples

LGBTQIA2S+ couples face unique challenges when pursuing surrogacy:

Parental Rights:

Establishing legal parentage can be more complicated for same-sex couples, particularly when one or both intended parents are not genetically related to the child. The AHRA provides some guidance, but there may still be uncertainties and variations in practice.

International Surrogacy:

Some LGBTQIA2S+ couples may consider international surrogacy due to various factors, such as cost or availability of surrogates. However, international surrogacy can be fraught with legal and ethical complexities, and it is crucial to seek expert legal advice.

Discrimination and Stigma:

LGBTQIA2S+ individuals seeking surrogacy may face discrimination and stigma from healthcare providers, family members, or friends. This can be a significant emotional and psychological burden.

Legal Challenges and Considerations

Despite the progress made in recognizing the rights of LGBTQIA2S+ couples, there are still legal challenges and considerations to be addressed:

Surrogacy Agreements:

It is essential to have a comprehensive and legally binding surrogacy agreement in place to protect the rights of all parties involved. This agreement should address issues such as:

• The roles and responsibilities of the intended parents and surrogate
• Medical decisions and procedures
• Financial arrangements
• Parental rights and responsibilities
• Dispute resolution mechanisms

Decision-Making Responsibility (Custody) and Child Support:

In the event of a breakdown in the relationship between the intended parents, issues of decision-making responsibility and parenting time and support need to be addressed. The laws governing these matters may vary depending on the specific circumstances of the case.

Ethical Considerations:

Surrogacy raises ethical questions, such as the potential for exploitation of surrogates and the well-being of the child. It is important for intended parents to carefully consider these issues and ensure that the arrangement is ethical and respectful of all parties involved.

Emerging Trends and Future Developments

The landscape of surrogacy law in Alberta is evolving, and there are several emerging trends and potential developments to watch:

Technological Advancements:

Advancements in reproductive technologies, such as in vitro fertilization (IVF) and genetic testing, are likely to have an impact on surrogacy arrangements. For example, the availability of preimplantation genetic diagnosis (PGD) can help intended parents select embryos without certain genetic conditions.

International Law:

Changes in international law may affect the recognition of foreign surrogacy arrangements in Canada. For instance, the Hague Convention on the Law Applicable to Contracts for the International Surrogacy Arrangement, which has been adopted by several countries, provides a framework for regulating international surrogacy.

Public Policy:

There may be ongoing discussions and debates about the appropriate legal and ethical framework for surrogacy in Canada. These discussions could lead to changes in legislation or guidelines.

Additional Considerations

Beyond the legal framework, there are other important factors to consider when exploring surrogacy:

Surrogate Selection:

Choosing a surrogate is a personal decision. Intended parents may want to consider factors such as the surrogate’s health, lifestyle, and personal experiences with pregnancy and childbirth.

Emotional and Psychological Well-being:

Surrogacy can be a significant emotional and psychological journey for both the intended parents and the surrogate. It is important to seek support from mental health professionals throughout the process.

Financial Considerations:

Surrogacy can be expensive, and intended parents should carefully consider the financial implications of the arrangement. This includes the cost of medical treatments, legal fees, and compensation for the surrogate.

Surrogacy & Family Law in Alberta

Surrogacy offers LGBTQIA2S+ couples a valuable opportunity to build families. However, navigating the legal complexities and ethical considerations can be challenging. By understanding the current state of surrogacy law in Alberta, the unique challenges faced by LGBTQIA2S+ couples, and the emerging trends, intended parents can make informed decisions and protect their rights. It is essential to seek legal advice from professionals who specialize in surrogacy and family law to ensure a smooth and successful process.

Calgary Surrogacy and Fertility Lawyers Providing Legal Representation and Contract Drafting for Fertility and Reproductive Matters

Growing a family is a beautiful journey. At Mincher Koeman, our family lawyers are dedicated to ensuring this journey is as smooth as possible and free from unnecessary legal stress. We are experienced in assisted reproductive processes, helping clients navigate the complexities of creating a family through various means. Our team has a deep understanding of the legal nuances involved and can draft comprehensive agreements that clearly outline all parties’ expectations, preventing future disputes. To schedule a consultation and discuss your specific needs, please contact us at 403-910-3000 or online.