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Do I need a surrogacy agreement with my cousin?

When new clients contact us about surrogacy, one of their first questions is whether a surrogacy contract is really required when the surrogate is a relative.

Our answer is always the same: yes.

We get it. A contract seems very formal when you know and trust your sister/cousin/niece enough that you are willing to pursue surrogacy with  them. So in this blog we outline three primary reasons to have a surrogacy agreement in Ontario, even if the surrogate and intended parents are related.

1. To anticipate potential issues

A key benefit to surrogacy agreements is that they force the intended parents and surrogate to think about difficult situations that could arise and plan for them. While most surrogacy journeys are smooth, there is always the potential for something unexpected to happen. Like anything else in life, it is far easier to handle curve balls if you have already contemplated what you want to happen in those situations. For example, if genetic testing reveals serious problems with the fetus, it would be devastating and indescribably challenging for the parties to find out at that time they have different philosophies about abortion. While this is a very serious and more extreme example, there are dozens of other potential disputes that could also arise. We believe that the surrogacy process should be as conflict-free as possible, and agreements are one tool for achieving this goal.

2. To avoid going to court after the birth

Until 2017 parents who had a child through surrogacy needed a lawyer to go to court on their behalves before they could register their child’s birth with the government and obtain a birth certificate. The law in Ontario recently changed and the process is now much more stream-lined. However, the new process is only possible IF the parties have a surrogacy agreement in place before the surrogate is pregnant AND the surrogate received independent legal advice (meaning from a different lawyer than the one who drafted the contract). The resources (financial, emotional and time) involved with going to court are best avoided in virtually every case.

3. To ensure everyone understands the law

Just because the parties are related does not mean they are more knowledgeable about surrogacy law than anyone else. Part of the process of making the surrogacy contract involves receiving legal advice about surrogacy laws in Ontario, and the parties’ rights and obligations to each other. It is an opportunity to understand what is and is not legal. Much of what is written about surrogacy in the public domain is from other countries, is not written by lawyers, or reflects different circumstances. There is no substitute for receiving proper advice and obtaining answers to the questions you didn’t even know you had.

Finally, as an honourable mention, it is also worth pointing out that many fertility clinics will not proceed until they have received a letter from a surrogacy lawyer indicating that a surrogacy agreement has been signed.

We hope you now understand why we believe surrogacy agreements are essential elements in every surrogacy journey.

If you are in need of a surrogacy agreement or legal advice about surrogacy, we would be pleased to assist you. We can be reached at 416-937-8768.

If you are looking for more information about surrogacy law and the legal process in Ontario, please visit our surrogacy page here: http://familyhealthlaw.ca/surrogacy-law-faqs/

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