Estate Planning

The legal and bioethical questions regarding surrogacy contracts

By Hull and Hull LLP

In today's blog I discuss the legal and bio-ethical questions that stem from contracts between surrogates and 'commissioning' parents.

Experts in the field of assisted reproduction suggest that surrogacy arrangements are becoming more commonplace in Canada. While there are no hard and fast statistics to support this proposition, I have no trouble believing it. Larry Kahn, a Vancouver based lawyer who specializes in assisted-reproduction and adoption law, recently advised the National Post that he has arranged more than 35 surrogacy contracts in each of the past 3 years, up from barely 15 such contracts a decade ago.

The National Post article for which Larry Kahn was interviewed dealt with a B.C. couple who urged their surrogate to abort the foetus she was carrying after it was discovered that the foetus would likely be born with Down syndrome. The surrogate, in contrast, wanted to carry the foetus to term.

The surrogacy contract provided that the couple would be absolved from any responsibility for raising and/or providing for the child, should the surrogate carry the foetus to term in the circumstances.

The above scenario raises questions about both the ethicacy and enforceability of a surrogacy contract, including:

1) Should contract law apply to this sort of transaction? If so, are children been reduced to the status of widgets? Juliet Guichon of the University of Calgary opines that the rules of commerce should not apply to the creation of children because children, unlike widgets, can get hurt and, of course, they are not produced on an assembly line.

2) Should family law rules prevail such that the terms contained within a surrogacy agreement which provide that biological parents do not need to support their child in the circumstances described above be invalid?

3) What role, if any, should the government play? To what extent should the surrogacy contract be regulated by provincial law?

The Assisted Human Reproduction Act, 2004 S.C.,c.2 ('Act') is federal legislation which was proclaimed, in part, on April 22, 2004. On April 22, 2004, all of the prohibitions (sections 5 through 9) came into force except section 8 which came into force on December 1, 2007. Section 6 deals with surrogacy and, in brief, provides that payment of compensation to a surrogate is a prohibited activity under the Act (reimbursement of expenses is currently permitted). The prohibitions related to surrogacy in the Act do not deal with the enforceability of surrogacy contracts because the validity, including civil enforceability, of a surrogacy agreement is a matter of provincial law.

To date, no surrogacy contract has been challenged in a Canadian court, but it may only be a matter of time and it will be interesting to see how a court grapples with this complex issue.
 

Have a great day!

Kathryn Pilkington

Full post as published by Toronto Estate Law Blog on November 02, 2010 (boomark / email).