Surrogacy is when a woman enters into an agreement with intended parents to carry a child that she will not be a parent to. This can be done either with the surrogate’s DNA or an implanted embryo. One, both, or neither of the intended parents may contribute reproductive assistance to the creation of the child. Surrogacy is highly regulated in Canada. Unlike in other countries, such as the United States, surrogates in Canada cannot be paid or compensated to be a surrogate. The Assisted Human Reproduction Act (“AHRA”) governs surrogacy and it sets out among other things, strict rules for how surrogates can be reimbursed for expenses.

Assisted human reproduction in Canada is considered altruistic and cannot be done for profit. Because surrogacy is an altruistic endeavour, surrogates also must not suffer any loss; thus the ways they may be reimbursed for specific expenses are set out in the AHRA and in the applicable Regulations. This includes documented travel expenses, medical expenses, groceries, any loss suffered to income as a result of the pregnancy so long as a medical practitioner has signed off on the loss, and other related expenses (with receipts). Additional compensation by the intended parents to any party involved with the surrogacy (the surrogate, any agency assisting with finding a surrogate, other donors etc.) can result in penalties under the AHRA. Speaking to a lawyer who specializes in fertility law to understand how intended parents can thank their surrogates is highly recommended.

While surrogacy is regulated at the federal level, especially in regards to compensating surrogates, it is also governed by the BC Family Law Act (“FLA”). The FLA defines “assisted human reproduction” as a means a method of conceiving a child other than by sexual intercourse. Reproduction through sexual intercourse would not qualify to be a surrogacy in BC, but would rather require that the intended parents enter into an adoption agreement with the birth mother.

BC has a fairly comprehensive statutory approach to surrogacy and covers that a donor (surrogate, egg, sperm, or the like) is not automatically considered a “parent” based solely on the donation (s. 24 FLA). BC law requires that intended parents and surrogates go through a two-step process: a surrogacy agreement prior to conception, and written consent of the surrogate after the birth (s. 29 FLA). Note that if a surrogacy agreement/ arrangement is not entered into prior to the conception, then the birth mother will be considered the child’s parent under s. 27 of the FLA.

The requirements for a surrogacy agreement are set out in s. 29 of the FLA which must include that

  • it must be in writing,
  • be made before the child is conceived through assisted reproduction, and
  • confirm that the birth mother will not be a parent of the child (FLA s. 29(2)).
  • Upon the birth of a child born as a result of assisted reproduction, it must be confirmed that no party to the agreement withdrew prior to the conception, and
  • the surrogate must give written consent to surrender the child to the intended parents (FLA s. 29(3)).
  • To be a surrogate, a woman must be at least 21 years of age (AHRA s. 6(4)).

Additionally, though not required, it is recommended for the safety of the surrogate that only women who have previously given birth become a surrogate. When considering surrogacy, either as a surrogate or intended parents, it is important to have a comprehensive agreement to set out the expectations of all parties. Because it is not required in BC to get a court order declaring parentage, and intended parents can be parents to the child born through surrogacy so long as there is a valid agreement, ensuring their is a written agreement between the intended parents and the surrogate is crucial. Consulting a lawyer prior to the conception of a child and prior to entering into such an agreement is strongly advised. Failure to do so could result in confusion and eventually having to attend Court to get a declaration of parentage, among other possible issues. Having a child should be a joyous time for intended parents and surrogates alike, and ensuring to have all parties’ rights and obligations clearly set out in the beginning will make for the best experience as parents embark on their parenting journey.

s.60 of the British Columbia Wills, Estates and Succession Act (WESA) allows the court to adjust the Will of a Will-maker if, in the courts opinion, the Will does not adequately provide for the Will-makers spouse or children.

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under s. 60 of the WESA?

This question was answered in a recent British Columbia Supreme Court decision Boer v Mikaloff, 2017 BCSC 21.  The facts of this case were as follows.  The Plaintiff who was an adopted child sought a variation of his birth mother’s Will.  The Plaintiff was born in 1967 and was legally adopted about a year later.  Approximately 30 years later the Plaintiff and his birth mother reunited and enjoyed a caring relationship.  This led to the Plaintiff’s birth mother designating the Plaintiff as a beneficiary under her Will.  After his birth mother’s death, the Plaintiff tried to vary the Will of his birth mother by virtue of s. 60 of the WESA.

The Court decided that the Plaintiff was unable to vary the Will under s. 60 of the WESA.  The court based its decision on s. 37(1)(c) of the British Columbia Adoption Act and s. 3(2)(a) of the WESA.

Section 37(1)(c) of the Adoption Act states that birth parents cease to have any parental rights or obligations with respect to the child.  When applying 37(1)(c) to the facts of Boer, the Plaintiff is not considered a child of his birth mother and is therefore unable to utilize s.60 of the WESA.

Section 3(2)(a) of the WESA states “the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent”.  The Court states at paragraph 26: “Section 3(2)(a) of the WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA.  In other words, an adopted child relative to a pre-adoption parent will-maker is in the same position as a non-family member.”

Since the adopted child is in the same position as a non-family member they will be unable to take advantage of s. 60 of the WESA.