Collaborative Family Building – The Lawyer’s Role


For Intended Parents who are new to collaborative family building – that is, third-party reproduction involving a Donor and/or a Surrogate – the process can feel daunting, replete with puzzling logistics, a new vernacular, ambiguous statistics, weighty decisions, lengthy to-do lists and multiple players including the clinic, counsellor, consultant and lawyer!  However, as with any mountain worth climbing, getting to the top is much more manageable when the journey is broken down into achievable, ordered steps!

When it comes to the role of the fertility lawyer in the collaborative family building process, there are typically four discrete legal steps, which take place in the following order:

Step 1 –  Document Review:  Early in the journey, I am often asked to review the Consulting Agreement offered by the agency and the Informed Consents required by the fertility clinic.  When reviewing these documents with my clients, I will provide independent legal advice and will ensure that my clients understand their rights and obligations under these agreements and informed consents.  Occasionally, there may be some negotiation and revisions to the documents prior to signing.

Step 2 – Drafting Contracts:  When the Donor and/or the Surrogate have passed their medical and psychological screenings, I will collect the information needed to draft an Ova Donation Agreement and/or Surrogacy Agreement, both of which will accurately capture my clients’ situation, preferences and views.  Once drafted, I will review the contract in detail with my clients to ensure that they thoroughly understand the contents and that it meets the parties’ individual needs.  When the Intended Parents are satisfied with the draft Agreement, I will provide a copy to the lawyer for the Donor and/or the Surrogate, who will likely propose some revisions on behalf of their clients.  When the parties are satisfied with the Agreement, they will execute in counterpart (meaning they will sign separately, for reasons of geography most likely) and I will then provide the fertility clinic with the legal clearance letter confirming that the parties obtained independent legal advice and that a signed Agreement is in place.  The fertility clinic will then be in a position to take the next treatment steps with the Donor and/or the Surrogate.

Step 3 -- Hospital Letter:  At 20 to 24 weeks gestation, I typically write a letter to the place of birth where the Surrogate intends to deliver.  The purpose of the letter is to inform the hospital or birthing centre of the surrogacy birth and to ensure that the Intended Parents and the Surrogate will be accommodated at the time of birth.  The letter, which is sent to the maternity social worker and to the obstetrician or midwife, deals with the issues of attendance at the birth, medical decision-making, custody of the child, confidentiality, and the child’s entitlement to OHIP, if applicable, among other matters.  It is important to me that the parties participate in this step so that the letter reflects their vision of the birth, in addition to covering some important legal points.

Step 4 – Legal Parentage:  This final step takes place following the birth, but preparation should commence in advance.  In Ontario, following enactment of the All Families Are Equal Act, 2016, there are now two possible processes to follow to ensure that the Intended Parents are the only legal parents of their child born through surrogacy.  If the parties obtained independent legal advice and signed a Surrogacy Agreement prior to the conception through assisted reproductive technology, I will guide them through the process of signing Statutory Declarations, completing the birth registration documents and liaising with the Registrar General for the Province of Ontario to ensure that they are named as the only parent(s) on their child’s birth registration documents.  If the parties do not meet the criteria set out above, I will work with them to bring an application for a Declaration of Parentage in order to obtain the same legal result.

Your fertility lawyer will resemble a mountain guide on this trek -- an incredible resource who, through an accumulation of knowledge and experience, will lead and advise you on each legal step of the journey, getting you to the summit with confidence.


Michelle Flowerday, LL.B.
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