A Quick Guide to Fertility Agreements

Fertility Agreements in family law in BC, cover the terms and conditions regarding the use of assisted reproductive technologies in broader family systems. Fertility Agreements set out the rights and responsibilities of the parties involved in the use of reproductive arrangements in their families including issues like surrogacy, donation of eggs, sperm and embryos.

Before a child is conceived through assisted production, a written agreement is made between a potential surrogate and an intended parent or the intended parents. The agreement should state that the birth mother of a child conceived through assisted reproduction and that, on the child’s birth, the surrogate will not be a parent of the child, the surrogate will surrender the child to the intended parent or intended parents, and the intended parent or intended parents will be the child’s parent or parents.

This agreement will be valid so long as

·         no party to the agreement withdraws;

·         after the child’s birth, the surrogate gives written consent to surrender the child to the intended parent or parents; and

·         an intended parent or parents takes the child into his or her, or their care. 

Surrogacy Agreements

Surrogacy Agreements outline the terms involving surrogacy arrangements, including the rights and responsibilities of the surrogate, the parent or intended parents, and other parties who may be affected by the surrogacy arrangement, like the surrogate’s spouse or partner.

Topics to be covered include:

a)      Identification of the Parties

Each family law agreement must property define the parties to the agreement. Consider which parties would be impacted by the fertility agreement when deciding whether to include them into the fertility agreement.

b)      Intention of the Parties;

Clearly set out the intentions of the parties, including who will be the parent or parents, who will have decision-making and parental responsibilities of the child. Include that the surrogate only has the intention to carry the child for the purpose of the intended parents to conceive the child, on an altruistic basis without expecting and will not be receiving any financial payment. The intentions should also clearly state that the surrogate does not intend to be the parent, and will surrender the child to the intended parent or parents after birth and has no rights or responsibilities of the child.

c)      Relationships Between Parties, Care Providers, and Information Sharing with Non-Parties;

Your donor agreement can set out who may be a care provider. For example, a doctor or treatment provider. It can also set out which clinic the surrogate will receive care. Consider the sharing of health information and confidentiality of the sharing the health information.

d)      Expectations for Pregnancy;

In this section, the parties can set out the expected number of transfer attempts, expectations for healthy pregnancy of the surrogate during the pregnancy, such as an obligation to maintain health. You may also wish to consider the type and amount of testing that is expected of the surrogate.

e)      Expectations for Birth;

In this section, the parties can agree on expectations for where the surrogate is to give birth, timing of communication of when the surrogate goes into labour, and whether the intended parent or parents are allowed to attend the birth. You may also wish to set out breast feeding obligations under this section, particularly in the first 24 hours after birth.

f)        Expectations for Difficult Circumstances;

In this section, the parties can set out expectations for difficult circumstances such as termination of pregnancy due to medical complications or health challenges for the surrogate and the child. The parties may set out the terms requiring genetic testing and what happens once you obtain those results.

g)       Insurance and Estate Considerations;

In this section the parties can set out expectations around health or disability insurance for the surrogate and other estate planning type documents like wills, power of attorney, representation agreements or life insurance.

h)      Responsibilities After Birth;

This section will set out the steps to be taken after birth including that the surrogate is to confirm in writing that the surrogate surrenders the child to the intended parent or parents and must complete a declaration for filing with Vital Statistics. The intended parent or parents will then complete a surrogacy package for Vital Statistics separately to register the child.

i)        Reimbursement for Expenses

It is illegal in Canada to pay for the service of a surrogate. However, a surrogate may be compensated for expenses related to the surrogacy. The parties may wish to review the Reimbursement Related to Assisted Human Reproduction Regulations, and consider which expenses the intended parent or parents will be responsible for.

j)        Releases;

In this section the parties can agree to release the surrogate from any liability with respect to the health, illness or disability of the child.

Donor Agreements

Terms to include in your donor agreement:

a)      Identification of Parties;

Each family law agreement must property define the parties to the agreement. Consider which parties would be impacted by the donor agreement when deciding whether to include them into the donor agreement.

b)      Intention of Parties;

In this section the parties can set out their intentions including that the donor has given consent to use their eggs, sperm, or embryos without financial payment. The parties can agree on how the donor will provide the donation and the number of times.

c)      Relationships between Parties;

In this section, the parties may consider communication to the donor when the child is born, if the donor makes further donations to others, the sharing of this information with others, and the relationship of the parties if they wish to continue a friendship.

d)      Reimbursement of Expenses;

It is illegal to pay a donor for the service of donation. However, as with surrogacy agreements, donors may be compensated for their expenses. Again, the parties may wish to review the Reimbursement Related to Assisted Human Reproduction Regulations, and consider which expenses should be reimbursed to the donor.

Dispute Resolution Clauses

Most family law agreements will have a dispute resolution clause which sets out the specific steps to resolve conflict between the parties or over the terms of the family law agreement. These clauses typically include a mechanism for settlement outside of court such as mediation or arbitration, to ensure that the matter stays out of court, or that the parties have a way to discuss and settle issues first outside of court, before having to incur the costs of litigation.

Independent Legal Advice

As with any family law agreement, remember to get independent legal advice with own family lawyer and make sure you understand your rights before signing anything. Your lawyer should review the agreement with you, make sure you understand and assist with negotiating any of the terms to make sure the agreement works for you.

If you want to learn more about this process, please feel free to reach out to our family lawyers for a consultation.