Late last summer, comedian Jimmy Fallon announced that he and his wife had a new baby girl, Winnie Rose Fallon, who was brought into the world with the help of a gestational surrogate. While many people reacted with surprise to their news, the Fallons are far from the first parents to rely on a gestational surrogate. The Fallons’ announcement, however, sheds light on an increasingly common way for partners to expand their families. In fact, according to the TODAY show, more couples are choosing gestational surrogacy than ever before. As surrogacy becomes more and more mainstream, it will be important for intended parents to fully understand all of the implications and ramifications of selecting this third party reproductive option and why legal guidance is absolutely critical.
Legal Parentage Matters
In 2012, a set of intended parents in Winnipeg had their lawyer draw up an agreement that they felt would establish them as the legal parents of their children who were to be born through surrogacy. Their gestational surrogate became pregnant with twins and the couple began planning and preparing for their children to arrive. Their planning, however, did not include the legal struggles they would face following the birth of their children. The gestational surrogate delivered twin boys, but due to the nuances in and interpretation of Manitoba law, the intended parents were surprised to discover that they had no legal right to the children. That is, they could not be registered as the legal parents of their children. In that province, the birth registry lists the woman who delivered the child as the legal mother, regardless of the surrogacy agreement the intended parents and the surrogate mother entered into.
These intended parents travelled an expensive and confusing legal journey to transfer parentage of their twin boys. Beyond the costly nature of this process, the question of legal parentage could have negative ramifications for the custodial parents: what if one of the children should require medical attention? Who is legally allowed to provide consent for those procedures? Consider, too, the woman who thought she was serving the couple as a gestational surrogate; she now finds herself the unwitting legal parent to twins. In spite of their agreement, the laws were not on their side.
Canadian parentage laws differ across provinces, with Quebec on one side, openly discouraging surrogacy, and British Columbia on the other, recently passing legislation to help define legal parentage in surrogacy cases. While the Winnipeg parents thought they had covered their legal bases, they found themselves in murky legal waters. A complete and thorough understanding of parentage and surrogacy—with guidance from a fertility lawyer whose experience covers your province’s specific laws—is critical to establishing and maintaining legal rights to the children who are born through surrogacy. As gestational surrogacy becomes a more common choice in Canada, the legal landscape will continue to evolve… making legal guidance from an experienced fertility lawyer an even more important factor for intended parents and surrogates alike.