How to Get a Surrogacy Agreement in BC Under BC Family Law Act?

Surrogacy Agreements in BC are written documents that layout various rights and obligations between the surrogate and a couple (or a single parent)  who plan on being the guardians and the parents of the surrogate’s child. Surrogacy agreements are often executed before conceiving the child and often require independent legal advice. The BC Family Law Act sets certain rules for surrogacy agreements and the rights of parents and children upon birth.

Surrogacy laws are governed by both federal and provincial legislation which I will try to simplify below, because hey unless you are a lawyer you don’t need the headache of trying to understand the complicated legal language they use.

Why Do People Use Surrogates?

Not being able to have a child with a partner can make or break relationships and is one of the biggest challenges some people face in their lives. As much as we all love to have normal lives and no problems to deal with, the reality is that we are all created to be imperfect. Because imperfections are what make us who we are and teach us lessons we couldn’t learn if we didn’t have them.

We all have challenges and problems that surface in different shapes and forms, because well, life is a life of chocolates. Looking for solutions and other options to deal with problems such as having a child is a healthy way of dealing with the challenge.  Feeling depressed, stressed or sorry about why it doesn’t come so easily in your situation will not benefit anyone, especially yourself and your relationship.

Instead of feeling sorry, a smart person looks for wise options to fix or make the situation better. One of those options is having a surrogate help you with your goals. There is no shame, stigma or anything wrong with coming up with creative ways to have a child in your life. Because having a child, in any way, is one of the biggest gifts life can give you. And if we have come this far to allow that to happen in this way, all we can do is be grateful and feel lucky that we can do it. So read on below to quickly and wisely do what you need to do to be happy and forget about all the noise.

Who is a Surrogate in British Columbia?

A surrogate is a woman who voluntarily and willingly accepts to conceive and get pregnant with a child and who at the child’s birth, will generally give up all her parental rights. She will then provide the child to another person or couple to raise and be the new parents of the child. A surrogate in BC is usually a friend or a relative of a couple who is unable to get pregnant and needs the surrogate’s help to have a child.

In some rare situations, both the surrogate and the new parents can be parents to a child which means the child will have more than 2 parents. To have this situation happen, a clear and written agreement will need to be entered between the surrogate and the new parents prior to the birth of the child.

From what I have seen as a BC surrogacy lawyer though, a child has more than 2 parents creates major problems and is rarely successful. Usually, the situation starts with the surrogate agreeing to surrender the child to the new parents but with pregnancy, she feels a sense of connection and love with the child and changes her mind, wanting to be a parent to the child. She then may withdraw from her agreement and ask to be the only parent of a child. Or she asks to get into an agreement that provides that she can be a co-parent of the child. None of these situations is ideal and should be avoided at all costs unless the relationship between the surrogate and the new parents is so open and loving and different, that it works. But it often does not work.

So before you decide to be a surrogate, you really need to make a conclusive decision that you will not be the parent after birth. Or if you are the new parents, you need to make sure that you fully trust the surrogate and know that you can rely on being free as the new parents of the child. Alternatively, you can enter into a strong agreement that disallows the surrogate or the new parents from going back on the deal once the agreement is entered into. That requires the assistance of a surrogacy lawyer. Contact us at 604-974-9529 or get in touch for a consultation to learn more.

Who Should Enter a Surrogacy Agreement in BC?

Commonly, the people who enter into a surrogacy agreement are:

1. A couple unable to get pregnant or conceive a child;
2. A gay or lesbian couple who want a child;
3. A single mother or father who wants to have a child;
4. Transgender persons; and
5. A woman wishing to be a surrogate.

Why Get into a Surrogacy Agreement in BC?

Well, it’s not really an option not to get a surrogacy agreement. It is mandatory to get into an agreement on surrogacy.  Your choices are either to get into the agreement without proper legal advice or an agreement with proper legal advice. The surrogacy agreement needs to talk about what happens before pregnancy, during and after pregnancy. It talks about who can consent and when consent can be withdrawn. It talks about many details such as the diet, behaviour, financial aid and other issues relating to the surrogate and the future parents. Certain conditions need to be met under the Family Law Act.  If you are thinking of getting into a surrogacy agreement that will guide the pregnancy, birth and care of the child before and after he/she is born, you need to make sure you protect your rights and obligations with the assistance of a surrogacy lawyer to avoid any pitfalls or disappointments in the future.

The BC Family Act states:

29   (1) In this section, “surrogate” means a birth mother who is a party to an agreement described in subsection (2).

(2) This section applies if,

• (a)before a child is conceived through assisted reproduction, a written agreement is made between a potential surrogate and an intended parent or the intended parents, and
• (b)the agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child’s birth,
  • (i) the surrogate will not be a parent of the child,
  • (ii) the surrogate will surrender the child to the intended parent or intended parents, and
  • (iii) the intended parent or intended parents will be the child’s parent or parents.

(3) On the birth of a child born as a result of assisted reproduction in the circumstances described in subsection (2), a person who is an intended parent under the agreement is the child’s parent if all of the following conditions are met:

• (a)before the child is conceived, no party to the agreement withdraws from the agreement;
• (b)after the child’s birth,

As you can see above, a surrogacy agreement is mandatory under the BC Family Law Act. If you and the surrogate enter into one without proper legal advice or a proper agreement, the agreement can be challenged or invalidated and much emotional agony will ensue in case there are any conflicts.

Our experienced BC surrogacy lawyers are familiar with all the different scenarios and challenges of surrogacy and arrangements and can help you.

How to Get into a Surrogacy Agreement in BC?

Our process in assisting the surrogate or the future parents relating to a surrogacy agreement is as follows:

1. First, we individually meet with the surrogate or the future parents. Note we can’t meet with both the surrogate and the future parents due to conflict of interest issues. It needs to be either or. Each side will need to have his/her own lawyers who give independent legal advice;
2. We find out about the specific facts of the situation and will ask numerous questions starting from the relationships, financial arrangements, preferences, arrangements during pregnancy and after, even presence at the birth of the child and how long after birth the child is to be handed over, care, arrangements, etc.
3. We provide our legal advice in how the agreement should be framed;
4. We draft a customized agreement tailored to your situation;
5. We provide the draft to the other lawyer or surrogate/future parents;
6. Agreement is negotiated and revised;
7. Agreement is executed by all parties; and
8. You are done.

The process usually takes between 2 weeks to 2 months depending on negotiations and the complexity of the matter.

What is Included in Surrogacy Agreements in BC?

These agreements are usually a minimum of 30 pages long and are drafted from the ground up to capture every situation and challenge you may face. Usually, we focus on the following issues and lay them out clearly in the agreement so that there is no confusion or dispute:

1. Payment

   1. Surrogates cannot be paid for surrogacy but they can be reimbursed for their reasonable costs. What costs are covered? They can include:
      1. Rent;
      2. Maternity leave;
      3. Vitamins and supplements;
      4. Doctor visits and medications;
      5. Living allowance;
      6. Utilities, car payments, phone, etc;
      7. Pay in exchange for the loss of employment;
      8. Who pays for the whole surrogacy and implanting the sperm process? What if there are extra costs or complications?
      9. Who will pay for the negotiation and independent legal advice given to the surrogate?
      10. Pay for the surrogates’ expenses after the child is born and for how long depending on the job and education of the surrogate, etc

2. Decision making

   1. What happens if pregnancy complications arise? Who makes decisions relating to medical care and prescriptions?
   2. Can the surrogate consume alcohol or drugs during pregnancy?
   3. Can the surrogate drink coffee or use botox or colour her hair during pregnancy?
   4. Can the surrogate travel during pregnancy?
   5. Should the surrogate and the birth parents attend some or all the medical appointments together?
   6. What if the doctor says abortion is necessary? Who makes that call? and much more.

3. Consent

   1. Can the surrogate withdraw consent before, during or after pregnancy? Can we just say that consent can never be withdrawn?
   2. What if the future parents no longer want to parent the child? What happens then?
   3. What if the future parents die before the birth of the child? Who will take care of the child?
   4. What if the surrogate parent dies at the time the child is born? Will the future parents become parents to the child or will the surrogate’s estate take over? and much more.

4. Care of the Child

   1. When the child is born, who will be the guardians of the child? What if one or both of the future parents die?
   2. Who will be able to make parental decisions relating to the child?
   3. Who will have care of the child? Who will be the alternative caretaker?
   4. Should the child have any contact or knowledge of the surrogate or have a relationship with her?
   5. Who will pay for the expenses relating to the child including day-to-day, medical, school or other expenses? and much more.

How Much Do Surrogacy Agreements Cost in BC?

Surrogacy agreements in BC costs usually start from $5000 and can go up to around $8000 depending on the complexity of the situation. They are like insurance: you pay the upfront amount but in case you get into an ‘accident’ or disagreement over the terms of the surrogacy or the child, the agreement will come into effect to protect you. I always tell my clients: you pay $2000 per year to insure your car, why wouldn’t you pay for an agreement on a one-time basis to make sure you are protected and can put your mind at ease, especially when it comes to the child who is definitely more valuable than a car?

Believe me, these agreements are not that profitable for us family lawyers because they require a lot of time and attention. But they can be the best things you can enter into if you are willing to enter into the confusing world of surrogacy.

There are many other points and information when it comes to surrogacy agreements that I cannot possibly explain in this blog. But I hope you get a basic understanding of the complexity of these situations. 

You are encouraged to set up an initial consultation to figure out your rights and obligations as future parents or a surrogate in BC by calling 604-974-9520 or get in touch. 

Written by Leena Yousefi.