Surrogacy for Same-Sex Parents in Alberta

Surrogacy can provide same-sex couples with an important path to parenthood — but it also involves significant legal planning.

Federal rules

In Canada, commercial surrogacy is prohibited under the federal Assisted Human Reproduction Act. It is an offence to pay a surrogate for her services, and a surrogate must be at least 21 years of age.

Surrogacy arrangements are therefore generally altruistic, although certain pregnancy-related expenses may be reimbursed in accordance with the legislation and its regulations, which require receipts and set out the categories of permitted expenses.

Establishing parentage in Alberta

In Alberta, intended parents must also consider how legal parentage will be established after the child is born. Under the Family Law Act, a surrogate is generally not a parent of the child if she consents, after the birth, to the intended parents being declared the child's parents. A court application for a declaration of parentage is commonly part of the process.

A surrogacy agreement is not enforceable in Alberta, but it can be used as evidence of the parties' intentions. That makes careful planning important before the pregnancy begins.

Considerations for same-sex intended parents

• Whose genetic material is used, and whether donor gametes are involved;
• Ensuring both intended parents are recognized as legal parents;
• Independent legal advice for the surrogate and the intended parents;
• Clear written expectations about expenses, medical decisions, and communication; and
• Estate planning and guardianship arrangements for the child.

Building a family through surrogacy can be extraordinarily rewarding. Understanding the legal framework at the outset can help protect everyone involved.