Assisted Reproduction: Fertility & Surrogacy

Law

“Assisted reproduction” refers to procedures used to help people make a baby in ways other than having sex. There are many legal issues to consider if you are going to use assisted reproduction. See the sections below for information about:

  • Different types of assisted reproduction
  • Laws about using reproductive materials (your own or donated)
  • Laws about using in vitro embryos (your own or donated)
  • Surrogacy
  • Different types of agreements you can enter into to deal with fertility matters, including donor agreements, surrogacy agreements, and embryo disposition agreements
  • What happens to reproductive materials or embryos if a couple separates
  • Laws about assisted reproduction after the death of a donor or intended parent

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

Choose the Process tab above for steps you can take to start the process, organizations that can help, and going to court about parentage issues.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: March 2017
Who is this Information Page for?

This Information Page has legal information about making a baby in ways other than having sex. This includes using different types of “assisted reproduction” such as:

  • artificial insemination (placing semen inside a woman’s body);
  • in vitro fertilization (creating an embryo outside of a woman’s body); and
  • surrogacy (having another woman carry and give birth to your child).

These and other options are explained in more detail below.

With some of these procedures, couples may use their own sperm and eggs. Or, they may use eggs, sperm, or embryos from donors.

With assisted reproduction, there are many legal requirements that must be followed. Also, there are certain things that you are not allowed to do.

Using assisted reproduction may also lead to legal issues about:

  • ownership of sperm, eggs, or embryos; and
  • the rights and responsibilities of all the people involved.

You should consider learning about the legal issues that may arise if you are either:

  • using assisted reproduction yourself; or
  • donating sperm, eggs, or embryos.
Tip

This Information Page will give you some basic legal information about assisted reproduction. However, these situations can be very complicated. You may also wish to speak to a lawyer who specializes in this area. For more information, see the Working with a Lawyer Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says in Alberta about assisted reproduction. For information on the processes involved with the different types of assisted reproduction options, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The topics on this page are listed in the order they are generally considered—the answers of one can affect what happens next and what choices you may need to make.

The first topic is What the words mean. Please read this section even if you think you already know what the words mean. This topic can be quite confusing because there have been many different words used over time. In order to understand the resources on this page, you will need to understand the legal terms.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific legal term, you can use the Glossary, which is in alphabetical order.

assisted reproduction

Procedures used to help people make a baby (also called “conceive” a baby). Often this is done in ways other than having sex. Some examples of assisted reproduction are:

  • fertility medication;
  • artificial insemination;
  • in vitro fertilization; and
  • surrogacy.

vagina

The first part of the opening in a woman’s body leading from the outside genitals (vulva) to the uterus.

uterus (also called “womb”)

The part of a woman’s body where a baby grows during pregnancy.

cervix

The part of a woman’s body connecting the vagina to the uterus.

egg (also called “ovum”)

The female reproductive cell. An egg is also called an “ovum.” More than one egg may be called “ova.” A woman’s egg and a man’s sperm are the cells needed to make a baby.

ovaries

The part of a woman’s body where her eggs (ova) develop.

fallopian tubes

The parts of a woman’s body that carry a woman’s eggs from her ovaries to her uterus.

sperm

The male reproductive cell. Sperm is found in semen (see below). A man’s sperm and a woman’s egg are the cells needed to make a baby.

semen

The fluid that comes out of a man’s penis when he ejaculates. Semen contains sperm.

sperm bank

A place where semen is collected and kept in cold storage for use in artificial reproduction. There is only one sperm bank in Canada. It is called ReproMed, and it also offers other services related to assisted reproduction.

embryo

A term used to describe an organism in its early stages of growth. An embryo is created when a sperm joins with an egg. This is called “fertilization.”

In assisted reproduction, there are 2 different types of embryos:

  • In vivo embryos. These are created when a sperm has fertilized an egg inside a woman’s body. An in vivo embryo can be created by having sex or by “artificial insemination” (see below).
  • In vitro embryos. These are created when a sperm has fertilized an egg outside a woman’s body. The process of creating an in vitro embryo is called “in vitro fertilization” (see below).

The law usually uses the term “embryos” when discussing organisms in the early stages of growth. But there are many early stages of growth. You may see other resources refer to a “zygote,” a “blastocyst,” or a “fetus.” All of these terms describe different stages of growth. For more information, see the following resources.



Web Prenatal development
The Encyclopedia of Children's Health
English

reproductive materials (also called “gametes”)

The cells used to make a baby. The cells from a man’s body are called “sperm.” The cells from a woman’s body are called “eggs” or “ova.” These reproductive materials are sometimes called “gametes.”

Be Aware

Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

fertilization

The process of a sperm joining with an egg to create a new embryo.

Be Aware

The law usually uses the term “embryo” when discussing an organism in the early stages of growth. But there are many early stages of growth. You may see other resources refer to this as a “zygote” or a “blastocyst.”

fetus

After about 8-12 weeks of growth, an embryo turns into a fetus. This is the period of development that continues until birth.

fertility

A person’s ability to make a baby. Fertility can refer to:

  • the ability of a man or a woman to make a baby; or
  • the ability of a particular woman and a particular man to make a baby together.

infertility

A person’s inability to make a baby. Infertility can be:

  • when a man cannot provide sperm to make a baby;
  • when a woman cannot provide the egg to make a baby or when she cannot carry the baby for the entire pregnancy; or
  • when a particular woman and a particular man are unable to make a baby together. For example, a man may have poor sperm quality and a woman may be producing eggs irregularly. Although they may be able to make a baby under certain circumstances, their chances of making a baby together are lower.

conception (conceiving)

The process of an embryo attaching to the uterus. Conception is commonly called “becoming pregnant.”

Be Aware

Some resources use this term to mean the process of a sperm joining with an egg (also called “fertilization”). However, under Canadian law, “conception” occurs when an embryo attaches to the uterus.

donor

A person or couple who give their sperm, egg, or embryo to another person or couple to use to have a baby. The donor may be known or unknown to the person or couple receiving the egg, sperm, or embryo. A donor may donate to a clinic or to the person or couple directly.

Be Aware

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a person is not a donor under the law, that person will be a legal parent to the child.

embryo donation

The act of a person or couple giving their embryo to another person or couple to have a baby. To do this, the embryo must be created outside of the woman’s body.

Embryo donation usually occurs after a person or a couple create an embryo for themselves. If they do not use all of the embryos themselves, they may donate the remaining embryos so that another person or couple can use them to try to have a baby. The person or couple who receive the embryo will use it for in vitro fertilization (see below).

It is rare for people to donate their embryos. There is usually a long wait list to receive a donated embryo.

donated embryo

An embryo that someone else created and gave to another person or couple. The donor may have used his or her own reproductive materials to create the donated embryo. Or, the donor may have used donated reproductive materials to create that embryo.

Be Aware

An embryo that you make and use yourself with donated reproductive materials is not a donated embryo. This is an embryo that you created and it is your embryo.

recipient

The person or couple who receive donated eggs, sperm, or embryos from a donor.

biological parent

A person who provides the sperm or the egg used to make a baby.

Be Aware

The term “biological parent” is defined differently within specific laws. For example, in laws about adoption, it has a different meaning. This is also true of the term “birth parent.”

intended parent

A person who uses assisted reproduction to try to make a baby, with the understanding that he or she will act as a parent to the child.

Intended parents may arrange to:

  • use donated reproductive materials or a donated embryo to have a baby; or
  • have a surrogate carry a child.

consent

Giving permission to allow something to happen. In assisted reproduction, this generally means permission to use reproductive materials or embryos. You must have consent whenever you use or donate reproductive materials or embryos. To give your consent you must have “capacity” (see below).

Be Aware

The specific consent requirements depend on the particular situation. You can find more details on the Information Requirement under the “Consent” heading in each topic below.

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor’s opinion or a judge’s decision).

Information Requirement

The information needed before a person can consent to the use of his or her reproductive materials or embryos. This information makes sure that the person understands how his or her reproductive materials or embryos will be used.

Be Aware

The specific information that is required changes depending on the particular situation. You can find more details on the Information Requirement under the “Consent” heading in each topic below.

donation agreement

A written contract signed by both:

  • the person or people who donate eggs, sperm, or embryos; and
  • the person or people who receive the donated eggs, sperm, or embryos (called the “recipients”).

This agreement describes the rights and responsibilities of both the recipients and the donors.

embryo disposition agreement

A written contract signed by:

  • people who plan to create an embryo together;
  • people who receive donated embryos together (the “recipients”);
  • the people or person who plan to create an embryo and a clinic; or
  • the recipients and a clinic.

This agreement usually includes decisions about what will happen to the embryos if:

  • the intended parents disagree about how to use the embryos;
  • one of the intended parents dies;
  • the intended parents end their relationship; and
  • there are any extra or unused embryos.

fertility drugs (also called “fertility medication”)

Medical treatments that help women or men increase fertility by changing the level of hormones in the body. Fertility drugs can be injected or taken by mouth. These drugs may be taken:

  • to help people have a baby through sex, without any other assisted reproduction treatment; or
  • at the same time as other assisted reproduction methods.

artificial insemination

The process of placing semen inside a woman’s body, in a way other than by having sex. The semen may be put in the vagina, the cervix, the uterus, or the fallopian tube.

in vitro fertilization (IVF)

The process of creating an embryo outside of a woman’s body. This means that a sperm has fertilized an egg outside of the body to create an embryo. This is done in a lab or a clinic. IVF may be done using your own eggs and sperm. Or, IVF may be done using donated eggs and sperm.

embryo transfer

The process of placing an embryo inside a woman’s uterus. An embryo transfer occurs after you have done in vitro fertilization, or when the embryo has been donated by someone else.

surrogacy

The act of agreeing to carry and give birth to a child for another couple or person. This woman is called the “surrogate.” This is usually done with the understanding that:

  • the other person or couple will parent the child once he or she is born; and
  • the surrogate will not be a parent to the child.

A surrogate may:

  • provide the eggs to conceive the child; or
  • carry a child who has no genetic connection to her. This means that the surrogate did not provide the eggs that helped create the embryo.
Be Aware

A woman who makes a baby by having sex will not be considered a “surrogate” under Canadian law. A surrogate must become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a woman is not a surrogate under the law, she will be a legal parent to the child.

surrogacy agreement

A written contract between:

  • a person or people who are using a surrogate; and
  • a surrogate.

This agreement will discuss the future rights and responsibilities of everyone who signed it. This includes the expectation that, after the birth, the surrogate will give the child to the intended parent(s).

parentage

The act of being a legal parent to a child. This person can be:

  • a biological parent of a child;
  • someone who has adopted a child; or
  • someone who has a Declaration of Parentage (see below).

Declaration of Parentage

An official document from a court saying that someone is either:

  • a parent of a child; or
  • not a parent of a child.

Declarations of Parentage are required in situations where a surrogate gave birth to the baby. This is to make sure that the intended parents become the legal parents of the child, and that the surrogate is not a legal parent of the child.

Be Aware

The resources linked below may call “Declarations of Parentage” something else, such as “Parentage Declarations” or “Declarations Respecting Parentage.”

best interests of the child

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

posthumously conceived child

A child conceived after the death of a person who provided sperm, eggs, or an embryo. This means that the mother or surrogate was not pregnant when the person died.

Remember

In Canadian law, “conceived” means that an embryo has attached to a woman’s uterus.

common-law partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship.”

The laws that may apply to you

As you work through the legal requirements for assisted reproduction, you may wish to read the laws (also called “statutes” or “acts”) that apply. In addition, you will need to know about the “regulations” associated with those laws. For more general information about laws and regulations, see the Our Legal System Information Page.

Federal laws and regulations

Federal laws are made by the Government of Canada and apply to all Canadians, no matter which province they live in. The federal laws that affect assisted reproduction are listed below.

Assisted Human Reproduction Act

This act contains the main laws that control how assisted reproduction can be used to make a baby in Canada.

Web Assisted Human Reproduction Act
Government of Canada
English

Web Loi sur la procréation assistée
Government of Canada
French

The “Consent Regulations”

This a regulation to the Assisted Human Reproduction Act. It has the rules for what consent is required from parties involved in assisted reproduction.


The “Semen Regulations”

These are regulations to the Food and Drugs Act. The official name is the Processing and Distribution of Semen for Assisted Conception Regulations. These regulations set out the current requirements that need to be met before semen can be used for assisted reproduction. These regulations are meant to control the spread of diseases and infections.


Currently, the Semen Regulations apply only to semen that:

  • is used for artificial insemination (and not in vitro fertilization);
  • is used in a clinic; and
  • is provided by a man to inseminate a woman who is not his sexual partner or wife.

There is more information about the Semen Regulations in several sections below. The sections you will need to read will depend on whether you are looking for information about donated semen or using your own semen. See the section below that applies to you:

  • “Using your own reproduction materials”
  • “Using donated reproduction materials”
  • “Donating your reproductive materials”
Be Aware

The current Semen Regulations may apply to at-home artificial insemination. If you plan on trying at-home artificial insemination, consider seeking the advice of lawyer who practices in the area of assisted human reproduction. They can make sure that you are following all of the required laws.

However, recent amendments to the Assisted Human Reproduction Act will result in changes to the requirements of the Semen Regulations. Although these amendments were made 2012, the planned changes are not yet in force. This means that they don’t apply yet. When these amendments do come into force, they will replace the requirements for using semen for assisted reproduction that are currently in the Semen Regulations (described just above). When this happens, there will be requirements for the use of sperm and eggs for all types of assisted reproduction when the person using them is not the spouse, common-law partner, or sexual partner of the person who provided them. It is currently not known when these amendments will come into force. The amendments are in the following resources.


Be Aware

In October 2016, the federal government said that it intends to soon bring these amendments into force. See the following resource for more information.


Provincial laws and regulations

Provincial laws are made by a provincial or territorial government. In Alberta, provincial laws are made by the Government of Alberta and apply only in Alberta. The Alberta laws that affect assisted reproduction are listed below. Each of the links below takes you to a page that lists the laws as well as the regulations that go with them.

Family Law Act

This act determines who is a legal parent to a child who is born from assisted reproduction. This is called “parentage.”

Web Family Law Act (and associated Regulations)
Government of Alberta
English

Vital Statistics Act

This act controls who is a registered “parent” with Vital Statistics.

Web Vital Statistics Act (and associated Regulations)
Government of Alberta
English

Matrimonial Property Act

This act determines how property will be treated if a marriage ends. This may impact how donated reproductive materials or embryos are treated when a married couple separates.

Wills and Succession Act

This act determines how property will be divided when a person dies. This may affect a person who uses his or her partner’s reproductive materials after the partner dies.

Jurisdiction in assisted reproduction: What is it and why does it matter?

What is jurisdiction?

Jurisdiction refers to the right or ability of a government or a court to make decisions about things.

In terms of government, “jurisdiction” refers to a particular government’s right, power, or authority to make laws.

  • The Government of Canada has “federal jurisdiction”—the laws made by the Government of Canada generally apply to everyone in Canada.
  • The provinces and territories of Canada have “provincial jurisdiction”—the laws made by those governments generally apply only within that province or territory.

The exact topics that each jurisdiction can make laws about is set out in Canada’s Constitution Act, 1867. Governments cannot make laws about topics that are not in their jurisdiction.

Why does it matter?

With some issues around assisted reproduction, jurisdiction can complicate things. This is because both the federal government and the provincial/territorial governments can make laws about assisted reproduction. The federal legal requirements are the same for everyone all across Canada. Provincial legal requirements are different in every province.

This can make it difficult when you are doing your research, because the laws are not all in the same place. Also, for provincial issues, you must make sure that what you are reading describes the laws in your province or territory. This is especially important if anyone involved lives in another jurisdiction. For example, the issue of parentage changes depending on which province you live in.

Both the federal laws and the provincial laws that affect assisted reproduction in Alberta are listed and explained in the “The laws that may apply to you” section above.

Be Aware

Some of the resources linked on this Information Page mention the laws of more than one jurisdiction. As a result, they do not necessarily apply to everyone. Before you rely on them, you will want to make sure that they actually apply to you.

More information

For information about where to find help in other provinces or territories, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Assisted reproduction: An introduction

What is assisted reproduction?

Sometimes people have difficulty making a baby or cannot make a baby by having sex. Assisted reproduction refers to procedures and treatments used to help people make (or “conceive”) a baby. There are several different procedures that may be used to help people make a baby. These include:

  • fertility medication;
  • artificial insemination;
  • in vitro fertilization; and
  • surrogacy.

Each of these options are described in more detail in the “Ways that assisted reproduction can happen: A summary” section below.

Sometimes people use several types of assisted reproduction at the same time.

When is assisted reproduction used?

Assisted reproduction may be an option if you are:

  • experiencing infertility;
  • in an LGBTQ relationship; or
  • considering having a child without a partner; or
  • wanting to preserve your fertility due to age or illness.

 

Infertility

Infertility refers to a person’s inability to make a baby. Infertility can be:

  • when a man cannot provide sperm to make a baby;
  • when a woman cannot provide the egg to make a baby or when she cannot carry the baby for the entire pregnancy; or
  • when a particular woman and a particular man are unable to make a baby together. For example, a man may have poor sperm quality and a woman may be producing eggs irregularly. Although they may be able to make a baby under certain circumstances, their chances of making a baby together are lower.

Although same-sex couples and people who are considering having a child without a partner cannot make a baby on their own, they may also experience infertility.

Sometimes people who are struggling with infertility have a medical condition that is causing the infertility. In such cases, it may be possible to treat that medical condition to restore fertility.

For more information about infertility, see the following resources.

Web Fertility Problems
Government of Alberta
English

Web What is infertility?
Fertility Matters Canada
English

Interactive Fertility Problems: Should I Be Tested?
Government of Alberta
English

Web Fertility
Government of Canada
English

Web Fertilité
Government of Canada
French

Web Success Rates
Fertility Matters Canada
English

You may also consider adopting a child. For more information, see the Adopting a Child Information Page.

 

LGBTQ relationships

If you are in a LGTBQ relationship and would like to have a child, you will likely have to use some form of assisted reproduction. This is because you need both sperm and eggs to make a baby.

You may also consider adopting a child. For more information, see the Adopting a Child Information Page.

The type of assisted reproduction you will consider depends on you and your partner’s biology:

  • If you are both biologically male, you will need to find a surrogate and possibly a separate egg donor (if the surrogate is not going to use her own eggs).
  • If you are both biologically female, you will need to find a sperm donor and decide who will carry the child.

For more information about assisted reproduction for LGBTQ couples, see the following resources.

Web LGBT Family Building
Fertility Law Canada
English
This is a private source. Learn more here.

Web AHR
LGBTQ Parenting Network
English

PDF Reproductive Options for Trans People
LGBTQ Parenting Network
English

 

Having children without a partner

For many people, having a child is very important. As a result, people who do not have partners may choose to have a child on their own using assisted reproduction.

To do this, you will need to find a donor and possibly a surrogate.

You may also consider adopting a child. For more information, see the Adopting a Child Information Page.

For more information about having a child without a partner, see the following resources.

Web Choice Moms Toronto
Choice Moms Toronto
English
This resource is from outside Alberta. Learn more here.

Web ChoiceMoms.org
ChoiceMoms.org
English
This resource is from outside Alberta. Learn more here.

Web Single Motherhood: Important Things to Consider
Shady Grove Fertility
English
This resource is from a private source outside Alberta. Learn more here.

Web Single Women
Olive Fertility Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web Single Parents and Same Sex Couples
Regional Fertility Program
English
This is a private source. Learn more here.

Web Useful Links and Resources
Informed Fertility
English
This resource is from a private source outside Alberta. Learn more here.



Web More Single, Straight Men and Gay Men Becoming Fathers by Choice
Progyny, Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Web More Single Guys Are Turning to Surrogacy to Become Dads
Meredith Women's Network
English
This resource is from a private source outside Alberta. Learn more here.
 

Preserving fertility because of age

Many people may want to have a child later in life. To increase their chances of a healthy pregnancy and child, they may choose to store some of their healthy reproductive materials to use later on. This is because reproductive materials may be negatively affected as a person ages.

For general information about using assisted reproduction to preserve fertility, see the following resources.

Web Fertility Preservation
Regional Fertility Program
English
This is a private source. Learn more here.

Web What is fertility preservation?
National Institutes of Health
English
This resource is from outside Alberta. Learn more here.

Web Fertility preservation
Human Fertilisation and Embryology Authority
English
This resource is from outside Alberta. Learn more here. Also see the information linked on the left of the page.

For specific information about preserving fertility due to age, see the following resources.

Web Age and Fertility: A Guide for Patients
American Society for Reproductive Medicine
English

PDF Edad y Fertilidad: Guía para pacientes
American Society for Reproductive Medicine
Spanish

Web Does My Age Affect My Fertility?
American Society for Reproductive Medicine
English

Web Fertility Preservation: What Are Your Options?
Canada Wide Media Limited
English

Web Egg Quality and a Woman's Age
Women's Health UK
English

Web A man’s age matters
Fertility Coalition
English

 

Preserving fertility because of illness

Serious illness can happen at any time. Even young people can have their fertility affected by illness. People who have been diagnosed with a serious illness may want to preserve their fertility. To do so, they may choose to store some of their healthy reproductive materials to use later on.

For general information about using assisted reproduction to preserve fertility, see the following resources.

Web Fertility Preservation
Regional Fertility Program
English
This is a private source. Learn more here.

Web What is fertility preservation?
National Institutes of Health
English
This resource is from outside Alberta. Learn more here.

Web Fertility preservation
Human Fertilisation and Embryology Authority
English
This resource is from outside Alberta. Learn more here. Also see the information linked on the left of the page.

For information for both men and women about preserving fertility due to illness, see the following resources.

Web Cancer and fertility
Government of Canada
English

Web Cancer et fertilité
Government of Canada
French

Web Research in fertility options
Canadian Cancer Society
English

Web Recherche sur les options de fertilité
Canadian Cancer Society
French

Web Fertility Preservation
American Society of Clinical Oncology
English
This resource is from outside Alberta. Learn more here.

Web Fertility preservation: Understand your options before cancer treatment
Mayo Foundation for Medical Education and Research
English
This resource is from outside Alberta. Learn more here.

Web Cancer and fertility
National Health Service
English
This resource is from outside Alberta. Learn more here.

Web Preserving Fertility Before Treatment
University of Texas
English
This resource is from outside Alberta. Learn more here.

For information for women about preserving fertility due to illness, see the following resources.


Web Freezing Embryos Helps Women Conceive After Breast Cancer Treatment
Breastcancer.org
English
This resource is from outside Alberta. Learn more here.

Web Fertility Preservation for Women Diagnosed with Cancer
SaveMyFertility.org
English
This resource is from outside Alberta. Learn more here.

Web Fertility Preservation Options for Women
LIVESTRONG
English
This resource is from outside Alberta. Learn more here.

For information for men about preserving fertility due to illness, see the following resources.

Web Fertility Preservation for Men Diagnosed with Cancer
SaveMyFertility.org
English
This resource is from outside Alberta. Learn more here.

Web Male Fertility Preservation
LIVESTRONG
English
This resource is from outside Alberta. Learn more here.

Web Fertility Preservation for Men: What You Must Know
IntegraMed America, Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Web Current practices in fertility preservation in male cancer patients
National Institutes of Health
English
This resource can be a challenge to read. Learn more here.
Ways that assisted reproduction can happen: An overview

There are many ways that assisted reproduction can happen.

For example, there are 2 ways of bringing the egg and sperm together to make a baby:

  • artificial insemination
  • in vitro fertilization (IVF)

Also, there are 3 ways that may be used to get the “parts” needed to make a baby:

  • sperm or egg donation;
  • embryo donation; and
  • surrogacy (to provide a womb, and sometimes an egg).

Another way to assist reproduction is to use fertility drugs. Using these drugs might be the only help that a couple needs to make a baby. Or, these drugs can be used together with any of the other ways that assisted reproduction happens. For more information, see the “Fertility drugs” section below.

Keep reading this section for an introduction to each of the other 5 ways listed above that are used for assisted reproduction. These introductions will also point you to the sections of this Information Page that provide more detailed information.

Before reading that detailed information, take the time to read the definitions of “reproductive materials” and “embryos.” (See the “What the words mean” section above.) These terms are important to understanding the legal issues around the methods and techniques of assisted reproduction.

Artificial insemination

A woman may be fertile, able to carry a child, and able to give birth to a child. But there is not a man who is able to provide the sperm needed to make a baby by having sex. Artificial insemination is the process of placing semen inside a woman’s body, in a way other than by having sex.

The semen may be put in the vagina, the cervix, the uterus, or the fallopian tube. When semen is placed directly inside a woman’s uterus, it is called “intrauterine insemination.” This is the most common type of artificial insemination.

Artificial insemination can happen in a clinic or at home. It may be done using your partner’s sperm, or donated sperm.

For more information about the process and legal issues, see the “Artificial insemination” section below.

In vitro fertilization (IVF)

In vitro fertilization is the process of creating an embryo outside of a woman’s body. This means that a sperm has fertilized an egg outside of the body to create an embryo. This is done in a lab or a clinic. IVF may be done using your own eggs and sperm. Or, IVF may be done using donated eggs and sperm.

For more information about the process and legal issues, see the “In vitro fertilization (IVF)” section below.

When an embryo is created using in vitro fertilization, the embryo is called an “in vitro embryo.” For detailed information about using these embryos, see:

  • the “Using embryos: An introduction” section below; and
  • all the sections below that start with “Using your own in vitro embryos.”

Sperm or egg donation

Sperm or egg donation occurs when a man gives his sperm or a woman gives her eggs so that another person or couple can have a baby. Donated sperm may be used for artificial insemination or for in vitro fertilization. Donated eggs can only be used for in vitro fertilization.

Remember

Eggs and sperm are called “reproductive materials.” Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

You may donate your own eggs or sperm to be used to make a baby with your partner or a surrogate. For detailed information about this, see:

  • the “Reproductive materials and embryos: An introduction” section below; and
  • all of the sections below that start with “Using your own reproductive materials.”

You may donate your eggs or sperm for others to use in making a baby. For detailed information about this, see all the sections below that start with “Donating your reproductive materials.”

You may use eggs or sperm that have been donated by someone else to make a baby. For detailed information about this, see all the sections below that start with “Using donated reproductive materials.”

Be Aware

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a person is not a donor under the law, that person will be a legal parent to the child.

Embryo donation

An embryo is an organism in its early stages of growth. It is created when a sperm joins with an egg.

Embryo donation is the act of a person or couple donating their embryo for another person or couple to have a baby. This means that the embryo was created outside of a woman’s body.

Embryo donation usually occurs after an individual or a couple create embryos for their own reproductive use. Then, when they do not use all of the embryos themselves, they will sometimes donate the remaining embryos so that someone else can try to have a baby. The person or people who receive the embryo will use an “embryo transfer” so that a woman can conceive a baby. An embryo transfer is the process of placing an embryo inside a woman’s uterus.

It is rare for a person or couple to donate their embryos. There is usually a long wait list to receive a donated embryo.

For detailed information about receiving embryos, see all the sections below that start with “Using donated embryos.”

For detailed information about giving away your embryos, see all the sections below that start with “Donating your embryos.”

Surrogacy

Sometimes people who want to make a baby may not be able to carry and give birth to a baby. These people will need to help of a surrogate to help them have a baby. Surrogacy is the act of agreeing to carry, and give birth to, a child for another couple or person. This woman is called the “surrogate.” This is usually done with the understanding that:

  • the other person or couple will parent the child once he or she is born; and
  • the surrogate will not be a parent to the child.

A surrogate may:

  • provide the eggs to conceive the child; or
  • carry a child who has no genetic connection to her. This means that the surrogate did not provide the eggs that helped create the embryo.
Be Aware

A woman who makes a baby by having sex will not be considered a “surrogate” under Canadian law. A surrogate must become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a woman is not a surrogate under the law, she will be a legal parent to the child.

For detailed information, see the “Using a surrogate” and “Being a surrogate” sections below.

More information

For more overview information about these different options, see the following resources.

Web Fertility Problems: Other Treatment
Government of Alberta
English

Web Fertility treatment options
Government of Canada
English

Web Traitements de fertilité possibles
Government of Canada
French

Web Fertility Treatment Options
Meredith Women's Network
English
This resource is from a private source outside Alberta. Learn more here.


Web Assisted human reproduction (AHR)
BabyCenter Canada
English

Web Birth Technology and Legal Issues
Centre for Public Legal Education Alberta
English
Fertility drugs

Fertility drugs are medical treatments that help increase fertility by changing the level of hormones in the body. Both men and women can take fertility drugs.

Fertility drugs can be used by both:

  • people trying to make a baby; and
  • donors or surrogates.

A person trying to make a baby may use fertility drugs. A woman who is donating eggs or acting as a surrogate will need to take fertility drugs.

Fertility drugs can be injected into a person or taken by mouth. Sometimes fertility drugs are taken at the same time as other medical treatments that can help make a baby.

Usually, you will need to go to a doctor to get a prescription for fertility drugs.

Be Aware

In Canada, it is illegal to sell prescription fertility drugs without a licence. If you get drugs from someone who does not have a licence, the fertility drugs may be harmful to you. This also means that you cannot sell your leftover fertility drugs. It is never legal to re-sell prescription medication.

For more information about fertility medication, see the following resources.

Web Fertility drugs
Infertility Network
English

Web Fertility drugs for men
BabyCenter Canada
English
This is a private source. Learn more here.

Web Fertility drugs for women
BabyCenter Canada
English
This is a private source. Learn more here.

Web Fertility drug: Clomiphene
BabyCenter Canada
English
This is a private source. Learn more here.

Web Fertility drug: Gonadotropins
BabyCenter Canada
English
This is a private source. Learn more here.
Artificial insemination

A woman may be fertile, able to carry a child, and able to give birth to a child, but there is not a man who is able to provide the sperm needed to make a baby by having sex. Artificial insemination is the process of placing semen inside a woman’s body, in a way other than by having sex.

The semen may be put in the vagina, the cervix, the uterus, or the fallopian tube. When semen is placed directly inside a woman’s uterus, it is called “intrauterine insemination.” This is the most common type of artificial insemination.

Be Aware

There are laws that control how you can use artificial insemination. Failing to follow the laws for assisted reproduction can have serious consequences. You may face up to 10 years in prison. Or, have to pay a fine of up to $500,000. Or both.

The process

The way you use artificial insemination will change depending on your particular situation. However, the process generally involves using a needleless syringe and a catheter to insert sperm into a woman’s body.

For information about the medical process of artificial insemination, see the following resources.

Web Insemination Procedures for Infertility
Government of Alberta
English

Web Fertility treatment: intrauterine insemination (IUI)
BabyCenter Canada
English
This is a private source. Learn more here.

Web Donor insemination
BabyCenter Canada
English
This is a private source. Learn more here.

You will also want to consider whether you will use home insemination or insemination in a clinic.

  • You may choose to have insemination done in a clinic or in your doctor’s office. A clinic or your doctor will be able to guide you through the medical process. They will also help you understand the legal requirements.
  • You may choose to do artificial insemination at home. This is generally less expensive than insemination in a clinic. You can use your own sperm or donated sperm. You may order sperm from a clinic, or through your doctor. Because you will not have a clinic to help you through the process, you need to be aware of the requirements and the laws that may apply to you.

Legal issues with artificial insemination

General legal issues

There are certain things that you will need to consider if you plan to use artificial insemination. Each person’s situation is different. You may need to learn about the laws that govern some of the following topics:

  • using your own reproductive materials;
  • using donated reproductive materials;
  • the consent requirements for using reproductive materials;
  • donor agreements;
  • using a surrogate;
  • surrogacy agreements; and
  • parentage (who is a legal parent to the child).

You can find more information about all of these topics throughout this Information Page.

Legal issues related to where you do the insemination

Most of the legal requirements for the topics listed above will apply no matter where the insemination happens.

However, the “Semen Regulations” are federal requirements that clinics must follow before they begin a procedure. If you are using a clinic or your doctor’s office, the medical practitioner will have to follow all of the legal requirements. This means any sperm that you use will be tested according to specific guidelines. These testing guidelines may also restrict whose sperm you are allowed to use.

Be Aware

The current Semen Regulations may apply to at-home artificial insemination. If you plan on trying at-home artificial insemination, consider seeking the advice of lawyer who practices in the area of assisted human reproduction. They can make sure that you are following all of the required laws.

There is more information about the Semen Regulations in several sections below. The sections you will need to read will depend on whether you are looking for information about donated semen or using your own semen. See the section below that applies to you:

  • “Using your own reproduction materials”
  • “Using donated reproduction materials”
  • “Donating your reproductive materials”
In vitro fertilization (IVF)

In vitro fertilization (IVF) is the process of creating an embryo outside of the body. This means that a sperm has fertilized an egg outside of the body to create an embryo. IVF may be done using:

  • your own eggs and sperm;
  • donated eggs and sperm; or
  • a combination of your sperm or eggs and donated sperm or eggs.

Once embryos have been made through IVF, they may be:

  • stored to be used in the future; or
  • placed in a woman’s uterus (called an “embryo transfer”). The embryo may be placed in the uterus of an intended parent or a surrogate.

There are laws that control how you can use IVF. Do not try to have IVF done without learning about the legal requirements. These requirements are described just below.

Failing to follow the laws for assisted reproduction can have serious consequences. You may face a conviction of up to 10 years in prison. Or, have to pay a large fine of up to $500,000. Or both.

For more information on in vitro fertilization, see the following resources.

Web In Vitro Fertilization for Infertility
Government of Alberta
English

Web Fertility treatment: in vitro fertilization (IVF)
BabyCenter Canada
English
This is a private source. Learn more here.

Web In Vitro Fertilization for Infertility
Government of British Columbia
English
This resource is from outside Alberta. Learn more here.

Web In vitro fertilization (IVF)
U.S. National Library of Medicine
English

Web In Vitro Fertilization
Regional Fertility Program
English
This is a private source. Learn more here.

Web In vitro fertilization (IVF)
Mayo Foundation for Medical Education and Research
English

Web In Vitro Fertilization (IVF)
Procrea Fertility
English
This is a private source. Learn more here.

Web IVF Process: 4 Steps to Getting Pregnant
IntegraMed America, Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Web In Vitro Fertilization: IVF
American Pregnancy Association
English
This resource is from outside Alberta. Learn more here.

Web Your in-vitro fertilization questions answered
The Globe and Mail
English

Legal issues with IVF

There are laws that affect whether you can use in vitro fertilization. Each person’s situation is different. You may need to learn about the laws that govern some of the following topics.

  • using your own or donated reproductive materials;
  • the consent requirements for reproductive materials;
  • ownership of reproductive materials;
  • using your own or donated embryos;
  • consent requirements for using in vitro embryo(s);
  • ownership of embryos;
  • donor agreements;
  • embryo disposition agreements;
  • using a surrogate;
  • surrogacy agreements;
  • parentage (who is a legal parent to the child); and
  • assisted reproduction after death.

You can find information on all of these topics on this Information Page.

Collecting eggs and sperm for IVF

To make an embryo using IVF, you must decide if you will use your own eggs or sperm, or donated eggs or sperm. If you choose to use your own eggs or sperm, you should be aware of what the process involves.

If a woman wants to use her own eggs for IVF, she will have to have some eggs removed from her body. For information about the process of collecting eggs, see the following resources.

Web In Vitro Fertilization for Infertility
Government of Alberta
English

Web What is an egg retrieval like?
Olive Fertility Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web In Vitro Fertilization
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English
This is a private source. Learn more here.

There is more than one way to collect sperm. For example: a man may ejaculate into a sterile cup. Or, he may be able to have a procedure to remove sperm from his body. For information about the process of collecting sperm, see the following resources.

Web Male Infertility
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surgical Sperm Retrieval
London Health Sciences Centre
English
This resource is from a private source outside Alberta. Learn more here.

After the sperm fertilizes the egg

After the sperm fertilizes the eggs, it is called an embryo. There are a few steps that you may want to consider taking after the embryo is created, but before it is put inside a woman’s uterus. For example, some people do “genetic diagnosis” to see if the child will have a genetic disorder.

After the in vitro embryos are created, they have to be put inside a woman’s uterus. This process is called an “embryo transfer.”

Usually the woman who plans to carry and give birth to the child will need to continue to take medication before the embryo transfer and for some time after the transfer. These medications may be taken by mouth or they may be injected.

Several days after the embryo is placed in the woman’s body, she will have a pregnancy test done to determine if the IVF was successful.

For more information about IVF, see the following resources.

Web In Vitro Fertilization
Regional Fertility Program
English
This is a private source. Learn more here.

Web Genetic testing and screening
Government of Canada
English

Web Tests et dépistage génétiques
Government of Canada
French

Web Preimplantation Genetic Diagnosis
Regional Fertility Program
English
This is a private source. Learn more here.

Web Comprehensive Chromosomal Screening (CCS)
Regional Fertility Program
English
This is a private source. Learn more here.
Reproductive materials and embryos: An introduction

Reproductive materials are the cells from a man and a woman’s body used to make a baby. The cell from a man’s body is called “sperm.” The cells from a woman’s body are called “eggs” or “ova.” Reproductive materials are sometimes called “gametes.”

When people use assisted reproduction to make a baby, they can:

  • use their own sperm and eggs;
  • use donated sperm or eggs; or
  • use a combination of their own and donated reproductive materials.

The choice you make will affect the kinds of legal issues that arise.

Be Aware

Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

The legal differences between reproductive materials and embryos will be discussed in the topics below.

Using your own reproductive materials (eggs and sperm)

There are several kinds of assisted reproduction where you can use your own reproductive materials. For example, your own reproductive materials can be used for:

  • artificial insemination;
  • in vitro fertilization; or
  • surrogacy.

Using any of these methods means that you will have to follow the laws that govern assisted reproduction in general. For more information about these, see the section called “The laws that may apply to you” above. In addition, each method has its own specific laws that must be followed. For more information about these, see the sections below that apply to you.

Using your own eggs

Methods

You may want to use your own eggs to make a baby. In assisted reproduction, there are 2 ways this can be done:

  • Artificial insemination. This means that sperm will be placed in your vagina, cervix, uterus, or fallopian tube. The sperm combines with your egg inside your body. The baby will then be conceived and grow inside your body.
  • In vitro fertilization. This means that you must have eggs removed (called “retrieved”) from your body. The eggs and sperm are then combined outside of your body (called “fertilization”). The fertilized egg is then placed inside your body or the body of a surrogate.

Egg testing

Currently, if you want to use your own eggs for artificial insemination or in vitro fertilization, the law does not require that your eggs be tested for specific diseases or infections. This is true whether you plan to carry the child yourself, or use a surrogate.

However, clinics may have their own rules. They will usually require you to have some testing done if you are using a surrogate. This can vary by clinic, as there are currently no formal rules that state which tests need to be done.

Be Aware

The federal government is in the process of making changes to the laws dealing with eggs used for assisted reproduction. These changes are meant to control the spread of diseases and infections. Although new regulations have been written, the planned changes are not yet in force. These new regulations will require that eggs be tested and quarantined for a certain amount of time before they can be used. The woman providing the eggs will also need to be screened and tested. If there is a possibility you came into contact with specific diseases or infections, this new screening process may make it so that you will be unable to use your eggs with a surrogate.

More information

For more information on using your own eggs, see the following resources.

Web In Vitro Fertilization for Infertility
Government of Alberta
English

Web What is an egg retrieval like?
Olive Fertility Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web In Vitro Fertilization
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Using your own sperm

Methods

You may want to use your own sperm to make a baby. In assisted reproduction, there are 2 ways this can be done:

  • Artificial insemination. This means that your sperm will be placed inside your partner’s body or the body of a surrogate. Your sperm then combines with the egg inside the woman’s body, where the baby will then be conceived and grow.
  • In vitro fertilization. This means that the eggs and sperm are combined outside of the woman’s body (called “fertilization”). The fertilized egg is then placed inside your partner’s body or the body of a surrogate.

For more information about sperm retrieval, see the following resources.

Web Male Infertility
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surgical Sperm Retrieval
London Health Sciences Centre
English
This resource is from a private source outside Alberta. Learn more here.

Sperm testing

Currently, if you want to use your own sperm for artificial insemination or in vitro fertilization with your spouse or partner, the law does not require that your sperm be tested for specific diseases or infections.

If you will be using your sperm to inseminate someone who is not your spouse or sexual partner (such as a surrogate), there are regulations that require certain kinds of testing and that restrict when sperm can be used. The official name of these regulations is Processing and Distribution of Semen for Assisted Conception Regulations. In many of the resources we link to, these regulations are called the “Semen Regulations.”

The “Semen Regulations” are meant to control the spread of diseases and infections from semen used for artificial insemination. They restrict who is allowed to provide sperm to inseminate surrogates. The federal government made these regulations, so they apply all over Canada.

However, the Semen Regulations only control semen for particular procedures and for certain people. For example:

  • They affect insemination that happens in a clinic but may also apply to insemination that happens at home.
  • They only apply to assisted reproduction where the person providing sperm is not the sexual partner of the woman who will carry the child during pregnancy.
  • They s do not apply where the egg is fertilized outside the body (in vitro fertilization).

In addition to the restrictions above, there are other rules that may prevent some people from using their semen to inseminate women who are not their spouses or sexual partners.

A person may be prevented from inseminating a surrogate if:

  • he or his sexual partner received a blood transfusion in the past 12 months; or
  • he has had a non-sterile tattoo or piercing in the past 12 months.

You will have to apply to the Donor Semen Special Access Program if you are planning on using your sperm to inseminate a surrogate and:

  • you are over the age of 40; or
  • you have had sex with a man since 1977.

If you do not apply for this program, you will not be able to use your sperm for insemination in a clinic.

The “Semen Regulations” also require that certain procedures be followed when semen is used to inseminate someone in a clinic. These must be followed if the person providing semen is not the spouse or sexual partner of the woman who will carry the child.

These procedures include:

  • anyone who provides semen must be tested for sexually transmitted infections;
  • the semen must then be kept in a clinic for at least 6 months; and
  • after 6 months, the person is tested again for sexually transmitted infections.

The semen must go through this process before it can be used to make a baby.

Be Aware

The federal government is in the process of making changes to the laws dealing with sperm used for assisted reproduction. These changes are meant to control the spread of diseases and infections. Although new regulations have been written, the planned changes are not yet in force. When these changes happen, they will include restrictions for sperm donation that will be used for in vitro fertilization (not just sperm that will be used for insemination). This means that any man who donates sperm, or who uses their own sperm with a surrogate, will need to be screened and tested. And, the sperm will need to be tested and quarantined before it can be used. There may also be certain restrictions that prevent men who may have come in contact with infections or diseases from donating or using their sperm with a surrogate.

For more information about the “Semen Regulations,” see the following resources.

Web Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination
Government of Canada
English
See “2. Exclusions.”




Web Semen Special Access Program
Government of Canada
English

More information

For more information about using your own sperm, see the following resources.

Web IVF with own eggs and partner’s sperm
Eugin Clinic
English
This resource is from a private source outside Alberta. Learn more here.

Web For Gay Men: Becoming a Parent through Surrogacy
Internet Health Resources
English
This resource is from a private source outside Alberta. Learn more here.

Web Fertility Options
International Assisted Reproduction Center
English
This resource is from a private source outside Alberta. Learn more here.

Web Understanding the Artificial Insemination Procedure
IntegraMed America, Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Web Gestational Surrogacy
International Assisted Reproduction Center
English
This resource is from a private source outside Alberta. Learn more here.
Using your own reproductive materials: Understanding “ownership”

People often wrongly think that once reproductive materials are collected, they will be “yours” to use forever. In other words, one partner can use the reproductive materials of the other partner. This comes from our understanding of property. We “own” property. When we are in a relationship, property can be owned together (“jointly”).

However, with reproductive materials, the potential result is not a piece of property—it is a child. Because of this, reproductive materials that come from someone in a relationship are not treated as “joint property.” Instead, reproductive materials belong to the person who provided them.

As a result, “ownership” of reproductive materials refers to who controls (or is “allowed” to use) the sperm or eggs, both now and in the future. This may be an issue if:

  • one of you changes your mind about using the reproductive materials;
  • your relationship ends; or
  • one of you dies.

Because of this, before anyone can use the reproductive materials, at any time, there must be clear and specific consent allowing the use from the person who provided the reproductive materials. Even if you provided the reproductive materials, and you use them with your partner right away, you must still meet all of the consent requirements. These are described in the “Using your own reproductive materials: Consent requirements” section below.

Be Aware

Donated reproductive materials are treated differently than reproductive materials that come from someone in the relationship. Similarly, once a sperm fertilizes an egg and it becomes an embryo, ownership is treated differently. For information about either of these situations, see the sections below about “Understanding ownership.”

Using your own reproductive materials: Consent requirements

General requirements of consent

Whenever reproductive materials are used for assisted reproduction, the people who provide the reproductive materials must give their consent. This is required even when you are using your own or your partner’s reproductive materials. A doctor or a clinic will require this consent before he or she will use the reproductive materials to help you make a baby.

To consent, a person must be at least 18 years old. The only exception to this is if the materials are collected to preserve the person’s ability to reproduce. This can happen if the person has an illness that will cause them to lose the ability to make sperm or eggs.

The consent must be in writing and it must include:

  • exactly what the reproductive materials can be used for (for example: to create an embryo for that person’s reproductive use);
  • the person’s written confirmation that he or she received the information needed to consent (this is called the “Information Requirement”—more information about that is just below);
  • the signature of the person providing the reproductive materials; and
  • the signature of a person who witnessed the person signing the consent.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

In addition, other general legal rules about consent also apply. For example, to give consent, a person:

  • must have the “capacity” to give consent (see the definition of “capacity” in the “What the words mean” section above);
  • must have given their consent without feeling fear or pressure; and
  • cannot have given consent because he or she was promised a gift or reward.
Be Aware

The consent requirements for embryos are different than the requirements for reproductive materials. After reproductive materials become an in vitro embryo (outside the body), there are different consent requirements.

For more general information about the consent requirements, see the following resources.





PDF Information for the Consent for Use of Human Reproductive Material
Can-Am Cryoservices
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

The “Information Requirement” for getting consent

The person providing the reproductive materials must truly understand what he or she is consenting to. To make sure that this person understands, he or she must:

  • be given certain information before he or she can consent to the use of the reproductive materials; and
  • confirm in writing that he or she has received this information.

On this Information Page, and in some of the resources, this is called the “Information Requirement.”

The information that must be provided to the person changes depending on what the reproductive materials are being used for.

However, the information must always be in writing and must include:

  • the specific purpose(s) for which the reproductive materials can be used; and
  • information about withdrawing (“taking back”) consent.

If the reproductive materials are being used to make in vitro embryos (and not for artificial insemination), the person must also be given information stating:

  • that there may be extra or unused reproductive materials or embryos, and what consent requirements are needed for someone else to use them;
  • the consent requirements if you and your partner later separate or if one of you dies; and
  • that if the person consented to his or her reproductive materials being used for teaching about assisted reproduction, or improving assisted reproduction methods, he or she does not have to provide consent again if an embryo is used for one of those purposes.

For more general information about the Information Requirement, see the following resources.



PDF Genesis Fertility Centre Patient Information & Acknowledgement
Genesis Fertility Centre
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

Consent for using reproductive materials after death

It is possible to use a person’s reproductive materials after that person dies. There are 2 ways this can happen:

  1. a person can consent to have reproductive materials removed from their body after they die; or
  2. a person can provide consent for the later use of reproductive materials that were collected before they died.

There are restrictions about using reproductive materials after a person has died.

  • A person can only provide consent for his or her spouse or common-law partner to use his or her reproductive materials after death.
  • However, once the surviving partner makes an embryo with these materials, he or she can donate the embryo to another couple or person even if the deceased person did not provide consent to donate the embryo.

If you want to remove your partner’s reproductive materials after death, there are additional requirements you must meet. Before death, the person who died must have provided you with:

  • consent to remove the reproductive materials from his or her dead body; and
  • consent to use the reproductive materials.

Without this detailed consent, the law does not permit someone to remove reproductive materials from a person after he or she has died.

Be Aware

There are other legal issues that may come up if you use reproductive materials from someone who has died. For more information, see the “Assisted reproduction after death” section below.

Withdrawing consent

After someone gives consent, he or she may withdraw (or “take back”) his or her consent. After someone has withdrawn consent, you cannot use the reproductive materials.

To withdraw consent, the person who provided the reproductive materials must give written notice to the other person.

In addition, there are time limits for withdrawing consent. Specifically, the person cannot withdraw consent after the materials have been used for their intended purpose. For example, a man cannot withdraw his consent to use his sperm after the sperm has been placed in a woman’s uterus.

If you were in a relationship with a person who provided reproductive materials and the relationship ends, you may no longer be able to use his or her reproductive materials. The person providing the reproductive materials may have only given consent for his or her partner to use the materials. If you are no longer in a relationship with the person, you must receive his or her consent before you can use the reproductive materials.

The time limits to withdraw consent are different if you are using donated reproductive materials. For more information about that, see the “Using donated reproductive materials: Consent requirements” section below.

Using your own reproductive materials: Freezing for future use and unused materials

Two common questions may arise if you are considering using your own reproductive materials for assisted reproduction:

  • Do you want to freeze your reproductive materials for future use?
  • What will happen to your unused reproductive materials in the future?

Freezing for future use

You may consider freezing reproductive materials for future use for many reasons, such as:

  • if you are struggling with infertility;
  • if you think you might want to try in vitro fertilization or surrogacy at a later time (but not now);
  • if you or your partner have a condition that may change your ability to reproduce, such as cancer.

Freezing reproductive materials may raise a number of legal concerns depending on whether someone else’s reproductive materials were also frozen. For example:

  • You may also freeze your partner’s reproductive materials to use in the future.
  • However, your partner may withdraw consent before you can use his or her reproductive materials.
  • If he or she withdraws consent, you will not be able to use his or her reproductive materials.

For more information, see the “Using your own reproductive materials: Consent requirements” section above.

Be Aware

You may freeze embryos containing reproductive materials from both you and your partner, but you may also want to freeze your reproductive materials separately. If you make embryos with your partner’s reproductive materials, they may, at any time before use, withdraw consent to use the embryos. If you have not also frozen your reproductive materials on their own, you would have no frozen genetic materials that you could use. You will not be able to use the embryos if your partner withdraws consent. If you then become infertile, you will not be able to have a baby who is genetically related to you.

For more information about freezing reproductive materials, see the following resources.


Web Sperm and Embryo Freezing
Pacific Fertility Center
English
This resource is from a private source outside Alberta. Learn more here.

Web Egg Freezing: Beating Biology and Buying Time, But at What Cost?
Center for Bioethics and Culture
English

Web Fertility Preservation: What Are Your Options?
Canada Wide Media Limited
English

Web Legal Considerations before Freezing Embryos
Cancer Knowledge Network
English

Web Egg and Embryo Banking - Questions to Consider
Northwestern University
English

What to do with your unused reproductive materials

People may have unused sperm or eggs if they:

  • successfully make a baby; or
  • change their mind about having a baby.

Sperm and eggs are stored in a facility for a fee after they are collected. If you no longer want to store them, there are several options for what to do with your unused reproductive materials:

  • donate them to another person or couple who are trying to make a baby;
  • donate them for a purpose other than helping someone else have a baby (such as research); or
  • dispose of them.

Donating to a person or couple

If you would like to help someone else conceive a child, you can donate your reproductive materials. Your clinic should be able to help with this.

Remember

Whenever you donate reproductive materials, you must have the consent of the person who provided it. You must have his or her consent to donate it for that particular purpose. For example, you cannot donate your partner’s sperm for another person to use unless your partner provided consent for another person to use it.

Donating for a purpose other than making a baby

You can also donate your unused reproductive materials for:

  • improving assisted reproduction procedures;
  • training for assisted reproduction procedures; or
  • research.

If you are planning on donating your unused reproductive materials for any of these purposes, you must have written consent from the people who provided the reproductive materials for the specific purposes. For example, if your partner gave you his consent to use his sperm to make a baby, this does not give you permission to donate his sperm for research. You must have his consent to donate his sperm for research.

More information

For more information about donating unused reproductive materials, see these sections below:

  • “Donating your reproductive materials (sperm or eggs): An introduction”
  • “Donating your reproductive materials: Consent requirements”
Using donated reproductive materials: An introduction

When people use assisted reproduction to make a baby, sometimes they need to use donated sperm or eggs. Or, they may use a combination of their own and donated reproductive materials. Donated eggs and sperm can be from a known donor or from an unknown donor.

There are several methods of assisted reproduction in which donated reproductive materials can be used. For example:

  • artificial insemination;
  • in vitro fertilization; or
  • surrogacy.

Having sex with someone is not “donating”

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus.

If a person is not a “donor,” he or she will be a legal parent to the child. For more information about that, see the “Parentage” sections below.

Finding a donor

In Canada, there are 3 options for finding a donor.

  1. Find an “altruistic” donor on your own. “Altruistic” means that the donor is not paid and does not get a direct benefit from donating. The donor simply wants to help someone else. Donors must be altruistic because it is illegal to pay a donor for reproductive materials in Canada.
  2. Find a donor with the help of a fertility clinic or a sperm bank.
  3. Find a donor in another country.

 

Finding an altruistic donor on your own

Often, an altruistic donor is a person you know or someone your family or friends know.

People can also sometimes find donors online through different websites where you can post profiles about yourself. These websites help to connect donors with intended parents. However, these websites cannot protect you. For example: Sometimes people agree to meet sperm donors in private to pick up the semen. Although this works for some people, there are many risks to finding a donor this way. Due to the risks, this Information Page will not discuss this type of donor.

 

Finding a donor with the help of a fertility clinic or a sperm bank

The second possible option is through a sperm bank or a fertility clinic. There is only one sperm bank in Canada: ReproMed. This means that ReproMed is the only facility that accepts sperm from Canadian donors. ReproMed also imports sperm and eggs from other countries that you can purchase.

Some clinics will help you find a donor or put you in contact with another agency that is able to help you. Some clinics also import sperm or eggs from other countries. It is legal to pay a legitimate clinic or a sperm bank for reproductive materials.

For more information, see the following resources.

Web Egg (Oocyte) Donation
Regional Fertility Program
English
This is a private source. Learn more here.

Web Donor Sperm
Regional Fertility Program
English
This is a private source. Learn more here.
  
PDF Choosing a Sperm Donor: Known or Unknown
LGBTQ Parenting Network
English

Finding a donor in another country

The third option is to travel abroad to find a donor. There are many risks to taking this approach. These risks include both legal and health risks. If you are considering this option you may also consider getting the advice of a lawyer before going ahead. See the Working with a Lawyer Information Page.

Using donated reproductive materials: The laws that apply

In Canada, both the federal government and the provincial/territorial governments can make laws about assisted reproduction (this is also called “jurisdiction”). The federal legal requirements are the same for everyone all across Canada. Provincial legal requirements are different in every province.

For more information about jurisdiction and why it matters, see the “Jurisdiction in assisted reproduction” section above.

Federal law about donated reproductive materials

The laws that control how you can get donated reproductive materials in Canada are made by the federal government. This means that they apply all across Canada.

Be Aware

Currently, there are laws that restrict who is allowed to donate semen for insemination. These laws are described below. However, the government plans to change these laws. When these changes happen, they will include restrictions for egg donation and sperm donation that will be used for in vitro fertilization (not just sperm used for insemination). For more information about these changes, see the section above called “The laws that may apply to you.”

Some of the activities that are illegal in Canada are:

  • buying reproductive materials from a donor;
  • offering to buy and advertising to buy sperm or eggs directly from the donor;
  • offering to buy and advertising to buy sperm or eggs from someone acting for the donor;
  • offering to sell and advertising to sell sperm or eggs directly for the donor; and
  • getting reproductive materials from a person who is under 18.

This means that you cannot pay a donor for sperm or eggs. This includes “paying” your donor with gifts or services.

Failing to follow the laws for assisted reproduction can have serious consequences. You may face up to 10 years in prison. Or, have to pay a fine of up to $500,000. Or both.

Although you cannot pay a donor for sperm or eggs, there are certain exceptions to make it easier for donors. For this reason, the laws against paying for reproductive materials do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone has to pay only because they agreed to do something for you. The expense must be a direct result of donating reproductive materials. For example: the cost of travelling to a clinic to donate reproductive materials.

You are allowed to pay a donor for the exact amount of out-of-pocket expenses if:

  • payment was after he or she has paid for the expense; and
  • the expense was a result of donating the reproductive materials; and
  • the donor provided a receipt to prove that he or she had an expense related to donating sperm or eggs.

These exceptions also allow fertility clinics to charge for their services. It is legal for a fertility clinic to sell you sperm or eggs, as long as the clinic is not acting for the donor. This means that they can import sperm or eggs from another country and charge for their service but they cannot directly pay the donors.

Be Aware

Just because you cannot pay a donor in Canada does not mean that it will not cost you any money. You may need to pay for testing and storing the reproductive materials. Also, if you are using an egg donor, the procedure to remove the eggs from the woman’s body can be very expensive. You might be responsible for this cost. For more information, see the “Costs and paying for assisted reproduction” section below.

Before you can use donated sperm or eggs, you must also have the consent of the donor. More information about the consent requirements is provided in the “Using donated reproductive materials: Consent requirements” section below.

Federal law about sperm donation: The “Semen Regulations”

The “Semen Regulations” are meant to control the spread of diseases and infections from semen used for artificial insemination.

When they apply

These regulations:

  • only apply to assisted reproduction where the person providing sperm is not the sexual partner of the woman who will carry the child during pregnancy;
  • do not apply where the egg is fertilized outside the body (in vitro fertilization); and
  • affect insemination that happens in a clinic.
Be Aware

The current Semen Regulations may apply to at-home artificial insemination. If you plan on trying at-home artificial insemination, consider seeking the advice of lawyer who practices in the area of assisted human reproduction. They can make sure that you are following all of the required laws.

Semen testing

Whenever semen is donated in a clinic, there are certain procedures that must be followed. For example:

  • donors are screened and interviewed;
  • all donors must be tested for sexually transmitted infections;
  • the semen must then be kept in a clinic (but not used) for at least 6 months; and
  • after 6 months, the donor is tested again for sexually transmitted infections.

The semen must go through this process before it can be used to make a baby.

The only company in Canada that provides these services is ReproMed. ReproMed is located in Toronto. The donor can either travel to the clinic or request that ReproMed complete the process while the donor is in another province.

For more information about the screening and testing procedures involved with donating semen, see the following resources.

Web Donor Screening
ReproMed
English
This is a private source. Learn more here.

Web In need of sperm?
Ottawa Fertility Centre
English
This is a private source. Learn more here.

Web Donor Sperm: Buyer Beware?
Nelligan O'Brien Payne LLP
English
This is a private source. Learn more here.

Web Sperm Donation in Canada: An Overview
Flowerday Law
English
This is a private source. Learn more here.

PDF Choosing a Sperm Donor: Known or Unknown
LGBTQ Parenting Network
English

Web Semen Analysis
Regional Fertility Program
English
This is a private source. Learn more here.

Web Semen Analysis: Test Overview
Government of British Columbia
English
This resource is from outside Alberta. Learn more here.

Restrictions for unknown donors

The Semen Regulations prevent a man (or male-to-female transgendered person) from donating as an unknown donor to a sperm bank if that person:

  • is over 40; or
  • has had sex with a man since 1977.

In addition to the restrictions above, there are other situations where a person may be prevented from donating semen as an unknown donor. For example:

  • if he or his sexual partner received a blood transfusion in the past 12 months; or
  • if he has had a non-sterile tattoo or piercing in the past 12 months.

For more information about situations that prevent donation (also called the “exclusionary criteria”), see the following resource.

Web Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination
Government of Canada
English
See “2. Exclusions.”

Restrictions for known donors

You will have to apply to the Donor Semen Special Access Program if you are planning on using sperm from a person you know and that person:

  • is over the age of 40; or
  • has had sex with a man since 1977.

If you do not apply for this program, you will not be able to use this person’s sperm for insemination in a clinic.

For more information about the Donor Semen Special Access Program, see the following resource.

Web Semen Special Access Program
Government of Canada
English
 

Upcoming changes to semen donation

The federal government is in the process of making changes to the laws dealing with sperm used for assisted reproduction. These changes are meant to control the spread of diseases and infections.

Although new regulations have been written, the planned changes are not yet in force. When these changes happen, they will include restrictions for sperm donation that will be used for in vitro fertilization (not just sperm that will be used for insemination). This means that any man who donates sperm, or who uses their own sperm with a surrogate, will need to be screened and tested. And, the sperm will need to be tested and quarantined before it can be used. There may also be certain restrictions that prevent men who may have come in contact with infections or diseases from donating or using their sperm with a surrogate.

Upcoming federal law about using donated eggs

The federal government is in the process of making changes to the laws dealing with eggs used for assisted reproduction. These changes are meant to control the spread of diseases and infections.

Although new regulations have been written, the planned changes are not yet in force. These new regulations will require that eggs be screened, tested and quarantined for a certain amount of time before they can be used. If you could have come into contact with specific diseases or infections, this new screening process may make it so that you will be unable to use your eggs with a surrogate.

Provincial and territorial law

Laws made by provincial or territorial governments may affect you too. For example: laws about parentage. This is the law about who is a legal parent to a child.

These laws are different across the country. As a result, if you are using a donor from another province, you may need to speak with a lawyer. For more information, see the Working with a Lawyer Information Page.

More information

For more information about the laws related to getting and using donated reproductive materials, see the following resources.



Web Sperm Donation Law in Canada
Fertility Law Canada
English
This is a private source. Learn more here.



Web Egg Donor Law in Canada
Fertility Law Canada
English
This is a private source. Learn more here.

Web Egg and embryo donation
BabyCenter Canada
English
This is a private source. Learn more here.

Web Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination
Government of Canada
English
See “2. Exclusions.”

Web Semen Special Access Program
Government of Canada
English

Web Designated (Known) Sperm Donors
ReproMed
English
This is a private source. Learn more here.

You may also want to read other sections of this Information Page below:

  • “Parentage: Can a donor be a parent?”
  • “Donors and children’s rights”
Using donated reproductive materials: Understanding “ownership”

When a someone donates reproductive materials, those materials are “owned” by the donor. As a result, the donor must give consent for you to use his or her reproductive materials. After giving consent, a donor may be able to withdraw (take back) his or her consent. If a donor does this, you can no longer use the reproductive materials.

However, as described below in the “Withdrawing consent” information, there is a point after which a donor can no longer withdraw consent. It is only at this point that the reproductive materials will be “owned by” you (and your partner, if you have one).

If you do have a partner, it may seem that, since the donated reproductive materials “belong” to you, they will be “yours” to use forever. This comes from our understanding of property. We “own” property. When we are in a relationship, property can be owned together (“jointly”).

However, in certain situations, the question of who “owns” the donated reproductive materials can become a problem. For example:

  • What happens if your relationship ends? Who gets to use the donated reproductive materials?
  • What happens if one of you decides that you do not want to use the donated reproductive materials?
  • What if one of you dies? Can the other still use the donated reproductive materials on their own?

Laws about property are different in every province and territory. In some provinces, courts have decided that donated reproductive materials are “property of the marriage” or “property of the relationship.” This means that they are treated just like other kinds of property are treated if the marriage or relationship ends.

In Alberta, this issue has not been decided by the courts.

 It is possible that Alberta courts may one day find that donated reproductive materials should be treated as “property of the marriage” or “property of the relationship.” If that happens, the reproductive materials would be divided based on the type of relationship you were in: married, or unmarried.

Because the issue of who “owns” the donated reproductive materials is so unclear, you may wish to consider coming to an agreement in advance about what can or cannot happen to the donated reproductive materials once you own them. For more information about how to write such an agreement, see the Cohabitation Agreements Information Page and the Pre-nuptial and Marriage Agreements Information Page

Be Aware

The ownership of people’s own reproductive materials is different. These materials are not treated as “property of the marriage” or “property of the relationship.” Instead, they are treated as belonging only to the person they came from. See the “Using your own reproductive materials: Understanding ownership” section above. The ownership of embryos is also treated differently. See the sections about “Understanding ownership” below.

Using donated reproductive materials: Consent requirements

General consent requirements for the donor

Before you use a donor’s reproductive materials for assisted reproduction, you must have his or her written consent. A doctor or a clinic will require this consent before using the reproductive materials to help you make a baby.

Be Aware

If you or your partner are using your own reproductive materials along with the donated reproductive materials, the partner providing the materials must also provide consent to use the reproductive materials. This is because anyone who provides reproductive materials to make a baby must provide written consent. To learn about the consent requirements for using your own reproductive materials, see the “Using your own reproductive materials: Consent requirements” section above.

To consent, a person must be at least 18 years old. The only exception to this is if the materials are collected to preserve the person’s ability to reproduce. This can happen if the person has an illness that will cause them to lose the ability to make sperm or eggs.

Consent must include:

  • what the reproductive materials can be used for (for example: to create an embryo for a person who is not the donor);
  • the person’s written confirmation that he or she received the information needed to consent (this is called the “Information Requirement”—more information about that is just below);
  • the signature of the person providing the reproductive materials; and
  • the signature of a person who witnessed the person signing the consent.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

In addition, other general legal rules about consent also apply. For example, in order to give consent, a person:

  • must have the mental ability (see definition of “capacity” above) and be able to give consent;
  • must be at least 18 years old;
  • must have given their consent without feeling fear or pressure; and
  • cannot have given consent because he or she was promised a gift or reward.

For more general information about consent, see the following resources.





PDF Information for the Consent for Use of Human Reproductive Material
Can-Am Cryoservices
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

The “Information Requirement” for getting consent

The person providing the reproductive materials must truly understand what he or she is consenting to. To make sure that this person understands, he or she must:

  • be given certain information before he or she can consent to the use of the reproductive materials; and
  • confirm in writing that he or she has received this information.

On this Information Page, and in some of the resources, this is called the “Information Requirement.”

The information that must be provided to the person changes depending on what the reproductive materials are being used for.

 However, the information must always be in writing and must include:

  • the specific purpose(s) for which the reproductive materials can be used; and
  • information about withdrawing (“taking back”) consent.

If the reproductive materials are being used to make in vitro embryos (and not for artificial insemination), the person must also be given information stating:

  • that there may be extra or unused reproductive materials or embryos, and what consent requirements are needed for someone else to use them;
  • the consent requirements if you and your partner later separate or if one of you dies; and
  • that if the person consented to his or her reproductive materials being used for teaching about assisted reproduction, or improving assisted reproduction methods, he or she does not have to provide consent again if an embryo is used for one of those purposes.

For more general information about the Information Requirement, see the following resources.


 
PDF Genesis Fertility Centre Patient Information & Acknowledgement
Genesis Fertility Centre
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

Withdrawing consent

After giving consent, a donor may be able to withdraw (take back) his or her consent. After a donor has withdrawn his or her consent, you can no longer use the reproductive materials.

However, there is a time limit for withdrawing consent. The donor cannot withdraw consent after the recipient(s) have selected the reproductive materials for their use and confirmed this in writing. For example: A sperm donor could not withdraw consent after the person or people who intend to use the sperm have ordered it from the sperm bank.

If a donor withdraws consent after this timeline has passed, a clinic may still refuse to use the reproductive materials. Even though the clinic is legally allowed to use the reproductive materials, they may choose to respect the wishes of the donor.

Be Aware

If you are also using your or your partner’s reproductive materials, the deadline for that person to withdraw consent is different. If someone is using their own reproductive materials, he or she can withdraw consent until the reproductive materials are used.

Using donated reproductive materials: Other considerations

If you are planning on using donated reproductive materials, there are several things you will need to consider for the future. This section has information about:

  • Getting enough reproductive materials
  • Freezing reproductive materials for future use
  • Making an agreement with your partner and/or a clinic
  • Common issues that come up with known donors
  • Common issues that come up with unknown donors
  • Connecting donors, children, siblings, and parents

Getting enough reproductive materials

Some people try to conceive more than one child with the same donor. If you want to do that, you may wish to consider getting extra reproductive materials when you start the process. Otherwise, it is possible that the donor will withdraw his or her consent before you can conceive a second child. For more information, see the “Using donated reproductive materials: Consent requirements” section above.

Freezing for future use

People may freeze enough reproductive materials for multiple attempts, in case they need to try more than once to make a baby. Or, sometimes people freeze donated reproductive materials for the future if they would like to make a baby who is genetically related to their other children.

If you do not plan to use the donated reproductive materials right away, you will need to pay a clinic to freeze and store them. You cannot freeze reproductive materials in your freezer at home. The freezer in your home is not cold enough to store reproductive materials. They will likely die before you can use them.

What to do with any unused reproductive materials

When you start the process, you may have ordered “extra” reproductive materials. For example, you may have wanted to make sure you had enough in case you wanted more than one baby and wanted the children to share the same donor. If you do not use all of the donated reproductive materials, you will want to talk to your clinic to find out about your options.

Making an agreement

You may enter into an agreement with a clinic that explains what will happen to the reproductive materials if you and your partner separate. If you do not agree to dispose of the reproductive materials, one of you will need to pay the storage fees until a decision can be made.

You and your partner can also agree in advance on how to divide the reproductive materials if you later separate or if one of you dies. This can be done in a domestic contract. For more general information about making domestic contracts, see the Cohabitation Agreements Information Page and the Pre-nuptial and Marriage Agreements Information Page.

Be Aware

This only applies to donated reproductive materials. If you made an agreement that allows you to use your partner’s reproductive materials, your partner could change his or her mind and you would not be allowed to use the reproductive materials. This is because you must have consent from the person who provided the reproductive materials before you can use it.

Common issues with using reproductive materials from a known donor

Some people may be more comfortable using reproductive materials from family or friends. However, there are certain things you will need to consider if you are using a known donor.

Involvement with the child

Using a known donor allows you to know more about the donor, including his or her detailed personal or medical history. However, a known donor may also expect to be more involved in the child’s life. This may be beneficial, or it may lead to conflict. Before using the donor’s reproductive materials, you will want to consider discussing with the donor whether:

  • the donor will be involved with the child in the future; or
  • the donor’s identity will be a secret.

Testing issues

When you are using a known sperm donor, the sperm may still need to be tested. This will depend on whether you are using a clinic or are doing home insemination.

Remember

The government plans to soon change the laws around testing donated reproductive materials. When these changes happen, they will include restrictions and requirements for both sperm and egg donation. For more information about these changes, see the section above called “The laws that may apply to you.”

If you are going to have the help of a clinic or doctor, the donor and his sperm will likely need to be tested before you can use it. If the sperm is not safe to be used for assisted reproduction, you cannot use it to make a baby.

Sometimes known sperm donors and intended parents will make a baby without the help of a doctor or other medical practitioner by using artificial insemination at home. Even if you do not use a fertility clinic to find sperm, it is important that the donor you plan to use be properly tested for sexually transmitted infections and diseases. An infection or disease can be passed on to the woman who carries the child during pregnancy, or to the baby.

Parentage issues

Many people are concerned that if they use a known donor, he or she will be a legal parent to the child. Being a legal parent to a child is called “parentage.” The laws about parentage are made by provincial and territorial governments.

In Alberta, the law says that a donor will not be a parent to a child just because he or she donated reproductive materials. However, this does not mean that a donor will never be found to be a parent to the child. A judge may still find a donor to be a parent of the child if he or she is behaving like a parent toward the child.

For more information about parentage in Alberta, see the “Parentage” sections below.

Common issues with using reproductive materials from an unknown donor

Many people prefer to use an unknown donor from a clinic. Using an unknown donor reduces the risk that the donor will try to become a parent to the child. However, using an unknown donor has issues of its own.

Finding donated reproductive materials

There are few organizations or clinics in Canada that will allow people to donate their sperm or eggs as an unknown donor. And there is only one “sperm bank” in Canada: ReproMed. It is the only clinic that will screen and test sperm samples before they are used. This must happen before anyone uses donated sperm to make a baby. After testing the sperm, ReproMed will use it in their clinic or send it to another clinic.

You can also get sperm through your local fertility clinic that is imported from other countries or provided by ReproMed.

There are only 2 Canadian organizations that will help connect an egg donor to intended parents. For information about these organizations, see the following resources.

Web Surrogacy in Canada Online
Surrogacy in Canada Online
English

Web Canadian Fertility Consulting
Canadian Fertility Consulting
English

Most donated eggs from unknown donors come from outside Canada. This is largely because it is a more invasive procedure than donating sperm. Egg donors have to take hormones for some time, and be sedated for the procedure. Also, there is some pain involved after the procedure. Women are more willing to do it if they can be paid (which is not allowed in Canada), and given all that is involved, they are less likely to donate eggs for someone they do not know.

Higher cost

Even though a donor in Canada cannot be paid for his or her reproductive materials, using an unknown donor would likely cost you more money than using a known donor. This is because using an unknown donor would likely require that you use a fertility clinic.

Fertility clinics charge for their services. In many cases, fertility clinics import their reproductive materials from fertility clinics or sperm banks in other countries. These foreign fertility clinics or sperm banks are allowed to pay donors. For this reason, imported reproductive materials often cost more money. But, because there are few donors in Canada, this may be your only option for using reproductive materials from an unknown donor.

Also, the process of collecting eggs from a woman’s body is very expensive. That cost is passed on to you. Even if you get donated eggs from a donor in Canada, you will need to pay for the egg retrieval procedure, as well as additional expenses.

For more information about the cost of using a donor, see the following resources.

Web Intended Parents interested in Surrogacy Services
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Cost of Surrogacy
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Fee Schedule
ReproMed
English
This is a private source. Learn more here.

Medical history of the donor

The medical history of a donor may be important if you want to know about what genetic conditions your child might inherit, or if your child becomes sick.

When you order reproductive materials from a fertility clinic or a sperm bank, you will be given some information about the donor’s medical history. However, the amount of information you get may change depending on:

  • where you get the reproductive materials; and
  • how much information the donor makes available.

It is often the case that when you use an unknown donor, you will not have access to the donor’s detailed medical and family history.

Donor identity and future contact

Children are often curious about their genetic origins. Because of this, your child may one day be interested in knowing the identity of his or her donor.

Unknown sperm donors can usually choose if they would like to be an anonymous donor. Or, they can choose to make their information and identity available to the child when he or she turns 18. Therefore, if you use a clinic, you will have the choice between choosing an “open ID” donor or an anonymous donor.

ReproMed is the only Canadian sperm bank. A “sperm bank” is a place where semen is collected and stored. ReproMed does not allow Canadian sperm donors to take back their consent to release their information. This means that if you get sperm from an open ID donor, the child will have access to his or her donor’s identity once he or she turns 18.

Unknown egg donors may also have the option of making their identity available to the child. However, this varies depending on where you get the eggs from. Unlike with sperm donation in Canada, an egg donor can go through different organizations or agencies to donate.

Some organizations allow an egg donor to:

  • be an open ID donor;
  • be an anonymous donor;
  • let the parents to choose whether they would like to have an open ID donor;
  • make themselves available to the parents if there is an emergency; or
  • exchange information or meet with intended parents.

However, you can also order sperm or eggs that come from another country. You can do this through ReproMed or your local fertility clinic. If you order sperm or eggs that come from outside Canada, sometimes the donor can take back their consent to release their information. This means that even if you signed up to receive sperm from an open ID donor, your child may not have access to the donor’s identity and information when he or she turns 18. As a result, before going ahead, you may want to ask if the donor is allowed to take back his or her consent to release their information.

Be Aware

The law about a donor’s right to privacy and a child’s right to information about his or her background is uncertain in Canada. In British Columbia, a court decided that the donor has a right to remain anonymous. In other words, that a child does not have a right to know a donor’s identity. This generally includes detailed medical information and family history. Several other countries are changing their laws to give donor-conceived children the right to know the identity of their donors (even if the donors asked not to be identified). In the future, this may influence Canada’s laws on assisted reproduction.

For more information about telling your child that they were the result of assisted reproduction, see following resources.

Web Telling Your Child
Donor Conception Network
English

Connecting donors, children, siblings, and parents

Children who are conceived with the help of a donor are often curious about the donor or any donor-conceived siblings they may have. Or, donors may originally choose to remain anonymous, and then decide that they want to connect at a later date.

There are voluntary registries that connect donor siblings, donor-conceived children with their donors, and parents with donors.

For more information, see the following resources.

Web Find information about a donor
Government of Canada
English


Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English


Web Talking to your donor-conceived child
Government of Canada
English

Web Parler à votre enfant conçu grâce à un don
Government of Canada
French


Web Telling Your Child
Donor Conception Network
English

Using embryos: An introduction

An embryo is a term used to describe an organism in its early stages of growth. An embryo is created when a sperm fertilizes an egg. This can happen through sex or through assisted reproduction.

An embryo is your embryo if you made it using your reproductive materials, or if you made it using donated reproductive materials.

An embryo is not your embryo if someone gave you the embryo. An embryo that someone gives you is always called a “donated” embryo.

There are 2 kinds of embryos that can be yours:

  • An “in vivo embryo”: This is an embryo created inside the body of a woman. It can be created by sex, or by artificial insemination. To make an in vivo embryo, you may use your own reproductive materials, or donated reproductive materials.
  • An “in vitro embryo”: This is an embryo that is made outside the body of a woman. This process is referred to as “in vitro fertilization.” To make an in vitro embryo, you may use your own reproductive materials, or donated reproductive materials.

Under Canadian law, these 2 kinds of embryos are treated differently. As a result, it is important to understand the difference.

  • For information about in vivo embryos, see the “Using your own reproductive materials” or “Using donated reproductive materials” sections above.
  • For information about in vitro embryos, see the sections below that refer to “in vitro” embryos.
Be Aware

Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

Using your own in vitro embryos: Understanding “ownership”

People often wrongly think that once in vitro embryos are made, they will be “yours” to use forever. In other words, one partner can use the embryos of the other partner. This comes from our understanding of property. We “own” property. When we are in a relationship, property can be owned together (“jointly”).

However, with in vitro embryos, the potential result is not a piece of property—it is a child. Because of this, in vitro embryos are not treated as “property” of the marriage or relationship. Instead, who “owns” the embryos, and therefore who is allowed to use them, depends on 2 things:

  • who provided the reproductive materials that made the embryo; and
  • the consents that were given.

Who owns an embryo may change depending on whether you are still in a relationship with the person who helped you make the embryo. It may also change depending on whether you used:

  • your spouse’s or partner’s reproductive materials;
  • your reproductive materials; or
  • donated reproductive materials.

The issue of who “owns” an embryo may be an issue if:

  • one of you changes your mind about using the embryo;
  • your relationship ends; or
  • one of you dies.

As a result, it is very important to understand the consent requirements for using in vitro embryos. See the “Using your own in vitro embryos: Consent requirements” section just below.

Using your own in vitro embryos: Consent requirements

Before you use an in vitro embryo, you must have the written consent from the person or people who had the embryo made for their use.

Even if you used your own sperm or eggs, you must provide consent before a medical practitioner will use the embryo to help you make a baby. Whenever embryos are used for assisted reproduction, consent is required.

General requirements of consent

Consent must include the following.

  • Specifically what the embryo can be used for.
  • The person’s written confirmation that he or she received the information needed to consent. This is called the “Information Requirement”—more information about that is just below.
  • The signature of the person providing the embryo.
  • The signature of a person who witnessed the person signing the consent.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

In addition, other general legal rules about consent also apply. For example, in order to give consent, a person:

  • must have the mental ability (see definition of “capacity” above) and be able to give consent;
  • must be at least 18 years old;
  • must have given their consent without feeling fear or pressure; and
  • cannot have given consent because he or she was promised a gift or reward.

Who must give consent?

Before you use an in vitro embryo to make a baby, you always need to have consent.

The person or people you need consent from are the people who “made” the embryo for their use. Even if the people who made the embryo (the “makers”) used donated reproductive materials to make the embryo, the makers are the people who must provide consent (not the people who donated reproductive materials).

Be Aware

The information provided in this section is about embryos that will be used to make babies. The consent requirements for donating embryos for purposes other than making a baby are different. For more information on this, see the “Donating your in vitro embryos” section below.

For example:

  • Taylor and Sam went to a fertility clinic and selected donated sperm and eggs.
  • Before Taylor and Sam were allowed to order the sperm and eggs, they had to get consent from John (the sperm donor) and Suzy (the egg donor).
  • Taylor and Sam then combined the sperm and eggs to make an in vitro embryo.
  • Because Taylor and Sam “made” the embryo, it is now their embryo.
  • Both Taylor and Sam must provide their consent before anyone (including Taylor and Sam) can use the embryo to make a baby.
  • Taylor and Sam do not need John and Suzy’s consent to use the embryo.
  • If Taylor and Sam choose to donate extra embryos, only Taylor and Sam must provide consent (no other consent is needed from John and Suzy).

Consent is needed every time an in vitro embryo is used. But, the requirements depend on the situation. These situations are described just below.

You created an embryo on your own (without a partner)

Only you need to provide consent, even if you did not use your own reproductive materials.

For example:

  • Sam made embryos using donated sperm and eggs.
  • Before Sam can use the embryos, only Sam needs to provide consent.

You and your spouse or partner created an embryo and you are still in the relationship

Both of you must provide consent. It does not matter who gave the sperm and eggs to make the embryo. Both of you need to provide consent even if you did not use your own reproductive materials. If one of you does not agree to use the embryo, you cannot use the embryo.

For example:

  • Taylor and Sam are in a relationship.
  • They decide to make in vitro embryos using Taylor’s sperm and donated eggs from Suzy.
  • Before Taylor and Sam could make the embryos, they needed both Taylor and Suzy’s consent to use Taylor’s sperm and Suzy’s eggs.
  • Before Taylor and Sam can use their embryos, both Taylor and Sam must provide their consent. It does not matter that only Taylor provided reproductive materials.
  • Before anyone can use the embryos to make a baby, both Taylor and Sam must provide their consent.
  • Once Suzy’s eggs are joined with Taylor’s sperm to make embryos, nobody needs to ask for her consent to use the embryos to make a baby.

You and your spouse or partner created an embryo but you have now separated

If both of you contributed reproductive materials to the embryo, both of you must provide your consent to use the embryo. This means that neither of you can use the embryo without the consent of the other.

If only one of you provided reproductive materials to make the embryo, that person is the only person who needs to give consent.

This means that if only your former spouse or partner provided reproductive materials, only he or she would have to provide consent. You will need his or her consent to use the embryo for your reproductive use. If he or she did not provide consent for this purpose, you will not be allowed to use the embryo.

On the other hand, if you are the only person who provided reproductive materials to make the embryo, you do not need the consent of your former spouse or partner to use the embryo. If your former spouse or partner would like to use the embryo, he or she will need your consent, for this purpose, before using it.

For example:

  • Taylor and Sam were in a relationship.
  • While they were in a relationship, Taylor and Sam made embryos to use in the future.
  • Taylor provided the sperm and they used donated eggs from Suzy to make the embryos.
  • After getting both Taylor and Suzy’s consent to use their reproductive materials to make embryos, Taylor and Sam made the embryos.
  • Before they used the embryos, Taylor and Sam ended their relationship.
  • Because only Taylor provided reproductive materials and his relationship with Sam ended, only Taylor’s consent is needed to use the embryos) to make a baby.
  • Sam cannot use the embryos without Taylor’s consent.
  • But, Taylor can use the embryos without Sam’s consent.
  • Suzy’s consent is not needed to use the embryos to make a baby.

If neither of you contributed reproductive materials to the embryo, you must have the consent of both parties to use the embryo. This means that neither of you can use the embryo without the consent of the other.

For example:

  • Taylor and Sam were married.
  • While they were married, Taylor and Sam made embryos to use in the future.
  • Taylor and Sam used donated eggs (from Suzy) and donated sperm (from Mike) to make the embryos.
  • Taylor and Sam had to get consent from both the egg donor (Suzy) and the sperm donor (Mike) before they could use the eggs and sperm.
  • Taylor and Sam got a divorce before they used the embryos.
  • Both Taylor and Sam must provide consent before anyone uses the embryos to make a baby.
  • Suzy and Mike do not need to provide consent for anyone to use the embryos to make a baby.

If you were in a relationship, but created an embryo on your own with donated reproductive materials (your spouse or partner was not involved), you do not the need the consent of your former spouse or partner.

More information

For more information about the consent requirements, see the following resources.





The “Information Requirement” for getting consent

The person providing the embryos must truly understand what he or she is consenting to. To make sure that this person understands, he or she must:

  • be given certain information before he or she can consent to the use of the embryos; and
  • confirm in writing that he or she has received this information.

On this Information Page, and in some of the resources, this is called the “Information Requirement.”

The information must always be in writing and must include:

  • the specific purpose(s) for which the embryos can be used; and
  • information about withdrawing (“taking back”) consent.

For more general information about the Information Requirement for using in vitro embryos, see the following resource.


Withdrawing consent to use your in vitro embryos to make a baby for yourself

After giving consent, you or your partner may withdraw (take back) your consent. After either of you have withdrawn your consent, the other person can no longer use the embryo.

To withdraw consent, the person who wants to withdraw the consent:

  • must tell his or her spouse or partner in writing; and
  • must do so before the embryos have been used. In other words, before the embryo has has been placed in a woman’s body.
Remember

Withdrawing consent is more complicated if you created the embryos with your spouse or partner and you are no longer together. Who must provide consent may change. For more information, see the “Who must give consent?” heading above.

Consenting to use in vitro embryos to make a baby after the death of one of the partners

A person may provide consent for his or her spouse or partner to use embryos after death. However, if that consent is given, the surviving person can only use the embryos to make a baby. He or she cannot donate the embryos.

Be Aware

Some additional legal issues may arise if you use embryos from a partner who has died. See the “Assisted reproduction after death” sections below.

Consent when using your in vitro embryos for a purpose other than making a baby for yourself

Usually people who provide reproductive materials give their consent for you to use those reproductive materials to make a baby for yourself.

They may also provide consent to donate the resulting embryos for a purpose other than making a baby for you. For example: to donate to another person or couple, or for research. If they did so, they do not need to provide consent again at the time the embryo is donated. But, if they did not already provide consent to donate the embryos for a purpose other than making a baby for yourself, they must provide that consent before the embryos can be donated for this purpose.

For example:

  • John donated his sperm to Jane and Adam so that they could make a baby.
  • John gave his consent for Jane and Adam to use the sperm to make embryos to have a baby.
  • Jane and Adam used Jane’s eggs and John’s donated sperm to make embryos.
  • Jane and Adam had a baby using the embryos. They want to donate the rest of the embryos for research.
  • Just because John gave his consent for Jane and Adam to use his sperm to make a baby, does not mean that they can donate the embryos for research.
  • Jane and Adam must have John’s consent to donate the embryo made from his sperm for research.
  • Jane must also provide her consent to donate the embryos made from her eggs for research.
  • As the people who created the embryo, Jane and Adam must also provide their consent to donate the embryos for research.

For more information about the consent required to use in vitro embryos for a purpose other than making a baby for yourself, see the “Donating your embryos: Consent requirements” section below.

Using your own in vitro embryos: Other considerations

Freezing for future use

You may consider freezing embryos for future use for many reasons, such as:

  • if you are struggling with infertility;
  • if you think you might want to try in vitro fertilization or surrogacy at a later time (but not now);
  • if you or your partner have a condition that may change your ability to reproduce, such as cancer.

Freezing embryos may raise a number of legal concerns. For example, freezing embryos containing both your partner’s and your reproductive materials. Couples often decide to freeze embryos instead of eggs and sperm because this is what doctors often recommend. However, this may cause problems if your relationship ends. If the relationship ends before you use the embryos, your partner can withdraw his or her consent. Without your partner’s consent you will not be able to use the embryos. This may prevent you from having children if you become infertile and did not also freeze your reproductive materials separately. If you are concerned about preserving your reproductive materials, it may be a good idea to freeze both the embryos and your sperm or eggs separately.

For more information about freezing embryos, see the following resources.

Web Legal Considerations before Freezing Embryos
Cancer Knowledge Network
English

Web Fertility Preservation: What Are Your Options?
Canada Wide Media Limited
English

Web Fertility preservation
Human Fertilisation and Embryology Authority
English
This resource is from outside Alberta. Learn more here.

Web Fertility preservation: Understand your options before cancer treatment
Mayo Foundation for Medical Education and Research
English
This resource is from outside Alberta. Learn more here.

Web Preserving Fertility Before Treatment
University of Texas
English
This resource is from outside Alberta. Learn more here.

Web Sperm and Embryo Freezing
Pacific Fertility Center
English
This resource is from a private source outside Alberta. Learn more here.

Web Embryo Freezing and Transfer
Victoria Fertility Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web Embryo freezing after IVF: Human blastocyst and embryo cryopreservation and vitrification
Advanced Fertility Center of Chicago
English
This resource is from a private source outside Alberta. Learn more here.

Web Egg and Embryo Banking - Questions to Consider
Northwestern University
English
This resource is from outside Alberta. Learn more here.

Web Embryo Freezing (Cryopreservation)
Genetics & IVF Institute
English
This resource is from a private source outside Alberta. Learn more here.


Web How do embryos survive the freezing process?
Scientific American
English

Web How does embryo freezing (cryopreservation) work?
Eugin Clinic
English
This resource is from a private source outside Alberta. Learn more here.

What to do with your unused embryos

People may have unused embryos if they:

  • successfully make a baby; or
  • change their mind about having a baby.

Embryos are stored in a facility for a fee after they are collected. If you no longer want to store them, there are several options for what to do with your unused embryos:

  • donate them to another person or couple who are trying to make a baby;
  • donate them for a purpose other than helping someone else have a baby (such as research); or
  • dispose of them.

 

Donating to a person or couple

If you would like to help someone else conceive a child, you can donate your embryos.

Be Aware

If you choose this option, your clinic may require you to go to counselling and get a psychological assessment. You will also likely need to have physical tests done if you were not tested when the embryo was made.

When people donate unused in vitro embryos, they often donate to someone they know. Fertility clinics can often help with this process.

It is also possible to donate embryos to a person or couple that the donors do not know. This can be completely anonymous. Or, the donors may be allowed to choose who receives the embryos. Depending on the organization that is used, donors may also be able to arrange to have contact with any children made from their embryos.

 

Donating for a purpose other than making a baby

You can also donate your unused embryos for:

  • improving assisted reproduction procedures;
  • training for assisted reproduction procedures; or
  • research.

 

More information

For more information on what you can do with your unused in vitro embryos, see the following resources.

Web Frozen in Time: Exploring the Options for Surplus Embryos
St. Joseph Media
English
This is a private source. Learn more here.

Web Embryo Donation Program: For Donors
ReproMed
English
This is a private source. Learn more here.

Web Cryostorage
Regional Fertility Program
English
This is a private source. Learn more here.

Web Embryo Donation
Regional Fertility Program
English
This is a private source. Learn more here.

Web How Do I Make A Decision About My Remaining Embryos? What Are My Options?
RESOLVE: The National Infertility Association
English
This resource is from outside Alberta. Learn more here.

Web What To Do With Unused Embryos When Your Family Is Complete
Columbia Fertility Associates
English
This is a private source from outside Alberta. Learn more here.

Agreeing in advance: Embryo disposition agreements

Given all of the issues listed above, you may wish to consider coming to an agreement with your partner, in advance, about what will happen to your in vitro embryos if:

  • you disagree about how to use the embryos;
  • there are any extra or unused embryos;
  • you separate; or
  • one of you dies.

This is called an “embryo disposition agreement.” It is a written contract signed by:

  • people who plan to create embryos together; or
  • the people or person who plan to create an embryo and a clinic.

If there is a disagreement about using, donating, or destroying the embryo, and there is no embryo disposition agreement, the law is uncertain about what happens to embryos in the meantime. The embryos can either stay in storage or be destroyed. If the embryos stay in storage, someone will have to pay the fees to store the embryos.

Most fertility clinics will require that you have an agreement in place outlining what will happen to the embryos if the relationship ends. In some cases, these agreements say that the embryos will be destroyed, donated, or that a court will decide what will happen to them.

Be Aware

Agreements that go against the law cannot be enforced. This means that any agreement must follow the consent requirements. You cannot agree that you do not need to provide consent.

Coming to an agreement about embryo disposition can be done on its own, or in a general domestic contract. For more information about making an embryo disposition agreement, see the “Assisted reproduction agreements” section below. For more general information about making domestic contracts, see the Cohabitation Agreements Information Page and the Pre-nuptial and Marriage Agreements Information Page.

Using donated embryos: An introduction

This section is about using donated embryos to make a baby. A donated embryo is an in vitro embryo (made outside the body) that another person or couple made for their use. Sometimes if people have extra embryos, they will donate these embryos to other people.

Remember

An embryo that you made with donated reproductive materials is your embryo. It is not a donated embryo. For information on using your embryos, see the “Using your own in vitro embryos” sections above.

Finding someone who is willing to donate an embryo is very rare. It is more common for people to use donated reproductive materials to make an embryo. However, if you are able to find a donated embryo, there are certain laws that you must follow. For more information, see the “Using donated embryos: The laws that apply” section below.

Be Aware

Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

Using donated embryos: Finding a donor

Although it is very difficult to find a donated embryo, there are 3 options for finding a donor.

Find an altruistic donor

Find an “altruistic” donor on your own. “Altruistic” means that the donor is not paid and does not get a direct benefit from donating. The donor simply wants to help someone else. Donors must be altruistic because it is illegal to pay a donor for embryos. Usually, an altruistic donor is a person you know or someone who your family or friends know.

Use a fertility clinic or an agency

Some fertility clinics will help you find a donor. They may offer a program where their clients can donate their unused embryos to other patients. Or, they may be able to put you in contact with another agency to help you. You may also be able to go directly to an agency that helps embryo donors connect with recipients.

Because people rarely donate their embryos, there are usually wait lists to get embryos. These clinics may require that you meet certain criteria before you can get donated embryos. For example, some clinics will require that the woman receiving the embryo transfer be under a certain age.

See the Process tab of this Information Page for contact information.

Be Aware

If you are using a donor from another province or country, you may need to speak with a lawyer who practices in that jurisdiction. Because the laws about who is legally a parent of a child (also called “parentage”) are different across the country, you may need to go through additional steps to be declared a parent of the child. To find legal help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Travel abroad to find a donor

There are many risks to taking this approach. For example:

  • Health risks. You may be given inaccurate information about family history, mental health, or physical health.
  • Legal risks. For example, if you get an embryo from another country, the laws may be different in that country. Or, issues may arise with the citizenship of the child, and about who the “parents” of the child are.

If you are considering traveling abroad to find a donor, also consider getting the advice of a lawyer before going ahead. To find a lawyer in Alberta, see the Working with a Lawyer Information Page. To find legal help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

More information

For more information on finding an embryo donor, see the following resources.

Web Using donors or surrogates
Government of Canada
English
See “Finding a donor or surrogate.”

Web Donneurs et mères porteuses
Government of Canada
French
Voir : “Trouver un donneur ou une mère porteuse.”

Web Fertility treatments outside of Canada
Government of Canada
English


Web Embryo Donation
Regional Fertility Program
English
This is a private source. Learn more here.

Web Embryo Donation Program: For Donors
ReproMed
English
This is a private source. Learn more here.
Using donated embryos: The laws that apply

There are laws that control how you can get donated embryos in Canada. These laws are made by the federal government, so they are the same everywhere in Canada.

Some of the activities that are illegal in Canada are:

  • buying embryos;
  • selling embryos (this also prevents a fertility clinic from selling embryos);
  • offering to buy or sell embryos; and
  • advertising to buy or sell embryos.

This means that you cannot pay a donor for embryos. Payment includes exchanges for money, goods, or services.

Failing to follow the laws for assisted reproduction can have serious consequences. You may face up to 10 years in prison. Or, have to pay a fine of up to $500,000. Or both.

Although you cannot pay a donor for embryos, there is an exception that tries to make sure that it does not cost people money to donate embryos. The laws against paying for embryos do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone had to pay only because they agreed to do something for you. The expense must be a direct result of donating embryos.

You are allowed to pay a donor for out-of-pocket expenses if:

  • payment was after he or she has paid for the expense; and
  • the expense was a result of donating the embryos; and
  • the donor provided a receipt to prove that he or she had an expense related to donating embryos.

An example of an out-of-pocket expense is the cost of transferring an embryo to a clinic.

You can only pay a donor back for the amount of money that he or she actually spent.

Before you can use donated embryos, you must also have the consent of the donor(s). For more information about this, see the “Using donated embryos: Consent requirements” section below.

For more information on the rules for getting and using donated embryos, see the following resource.


Using donated embryos: Understanding “ownership”

The issue of the “ownership” of embryos is one of control: the person or people who “own” the embryo are the ones who are allowed to use those embryos.

Until embryos are donated, they belong to the person or people who made them.

Once these donors have completed the all of the consent requirements (described in the “Using donated embryos: Consent requirements” section below), the donated embryos belong to the person or people they were donated to. These people are called “recipients” because they are receiving the embryos.

If you and your partner receive embryos together, ownership can become very complicated. There could be problems if:

  • your partner refuses to use the donated embryos;
  • the relationship ends; or
  • your partner dies.

The law is unclear about how donated embryos are treated in such situations.

To avoid this complication, most fertility clinics will require that you have an agreement in place outlining what will happen to the embryos if the relationship ends. In some cases, these agreements say that the embryos will be destroyed, donated, or that a court will decide what will happen to them. For more information, see the “Assisted reproduction agreements” section below.

Using donated embryos: Consent requirements

Donating embryos to other people is a very important decision and can be a very emotional experience for donors. It is important that donors are absolutely certain that they want to donate the embryos. Because of this, before you use an embryo for assisted reproduction, you must have written consent from the person or people who made that embryo.

Consent must include:

  • what the embryos can be used for. For example: to create a baby for a person who is not the donor;
  • the person’s written confirmation that he or she received the information needed to consent (this is called the “Information Requirement”—more information about that is just below);
  • the signature of the person providing the embryo; and
  • the signature of a person who witnessed the person signing the consent.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

In addition, other general legal rules about consent also apply. For example, in order to give consent, a person:

  • must have the mental ability (see definition of “capacity” above) and be able to give consent;
  • must be at least 18 years old;
  • must have given their consent without feeling fear or pressure; and
  • cannot have given consent because he or she was promised a gift or reward.

For more general information about the consent needed from the donors, see the following resources.




Who must give consent?

You need consent from the person or people who made the embryo (the donors). This is true even if the donors used donated reproductive materials. The “makers” of the embryo, not the people who donated reproductive materials, are the people who must provide consent.

For example:

  • Taylor and Sam went to a fertility clinic and selected donated sperm and eggs.
  • Before Taylor and Sam were allowed to order the sperm and eggs, they had to have the consent from John (the sperm donor) and Suzy (the egg donor).
  • After Taylor and Sam ordered the sperm and eggs, they combined them to make in vitro embryos.
  • Taylor and Sam have extra embryos and would like to donate them to Jamie.
  • Both Taylor and Sam must provide their consent before Jamie can use the embryo to make a baby.
  • Jamie does not need John and Suzy’s consent to use the embryo to make a baby.

Consent is needed every time an in vitro embryo is used. But, the requirements depend on the situation. These situations are described just below.

A donor created an embryo on their own

You need this person’s consent even if they did not use their own reproductive materials.

For example:

  • Sam made embryos using donated sperm and eggs.
  • Sam wants to donate an extra embryo to Jamie.
  • Jamie only needs Sam’s consent to use the embryo.

The donors are a married or common-law couple

If the donors who created the embryo are still married to each other or in a common-law relationship together, both of them must provide consent. This is true even if they did not use their own reproductive materials to make the embryo.

For example:

  • Taylor and Sam are in a common-law relationship.
  • They make in vitro embryos using Taylor’s sperm and donated eggs.
  • Taylor and Sam want to donate an extra embryo to Jamie.
  • Before Jamie can use the embryo, both Taylor and Sam must provide their consent.
  • It does not matter that only Taylor provided reproductive materials.

The donors created an embryo while they were together but they have now separated

If a donor created an embryo with his or her spouse or common-law partner and they are no longer in a relationship, it matters if only one of the people in the relationship provided sperm or eggs to make the embryo. The person who provided reproductive materials to make the embryo is the only person who needs to give consent. This means that if only one spouse or common-law partner provided reproductive materials, only he or she would have to provide consent for you to use the embryo.

For example:

  • Taylor and Sam were in a common-law relationship.
  • While they were together, Taylor and Sam made embryos to use in the future.
  • Taylor provided the sperm and they used donated eggs to make the embryos.
  • Taylor and Sam ended their relationship.
  • Taylor wants to donate the embryos to Jamie.
  • Only Taylor’s consent is needed to donate the embryos to Jamie.
  • Sam could not donate the embryos without Taylor’s consent.

If a donor created an embryo with his or her spouse or common-law partner and they are no longer in a relationship, both people must provide consent to donate the embryo if:

  • they only used donated reproductive materials (neither partner provided sperm or eggs); or
  • both the sperm and the eggs came from the people in the relationship.

For example:

  • Taylor and Sam were married.
  • While they were married, Taylor and Sam made embryos to use in the future.
  • Taylor and Sam used donated eggs and donated sperm to make the embryos.
  • Taylor and Sam separated before they used the embryos.
  • Taylor wants to donate the embryos to Jamie.
  • Taylor and Sam must both consent before donating the embryos to Jamie.

The “Information Requirement” for getting consent

The person providing the embryos must truly understand what he or she is consenting to. To make sure that this person understands, he or she must:

  • be given certain information before he or she can consent to the use of the embryos; and
  • confirm in writing that he or she has received this information.

On this Information Page, and in some of the resources, this is called the “Information Requirement.”

Be Aware

The exact information that must be given to the donor changes depending on whether the donor is giving you reproductive materials or if he or she is donating an embryo. It will also depend on what the reproductive materials or embryos are being used for.

For more information about the Information Requirement, see the following resource.


Withdrawing consent to use donated embryos

After a donor gives consent, he or she may withdraw (or “take back”) that consent. After a donor has withdrawn consent, you cannot use the embryos.

To withdraw consent, the donor must give written notice to the people who intend to use the embryos.

In addition, there are time limits for withdrawing consent. When you are using a donated embryo, the donor cannot withdraw consent after you have selected the embryo for your use, and confirmed this in writing.

For example:

  • Sometimes you can get donated embryos through your fertility clinic.
  • Once you have given the fertility clinic your written confirmation that you will use the embryos, the donor can no longer withdraw their consent for you to use their embryos.
Be Aware

If a donor withdraws consent after this timeline has passed, a clinic may still refuse to use the donated embryos. Even though the clinic is legally allowed to use the embryos, they may choose to respect the wishes of the donor.

​​​​​​
Using donated embryos: Other considerations

If you are planning on using donated embryos, there are several things you will need to consider for the future. This section has information about:

  • Freezing embryos for future use
  • What to do with unused donated embryos
  • Making an agreement about the use of the embryos (an “embryo disposition agreement”)
  • Common issues that come up with known donors
  • Common issues that come up with unknown donors
  • Connecting donors, children, siblings, and parents

Freezing for future use

You may want to freeze a donated embryo if you want to have a baby (or another baby) at a later time. If you do not plan to use the donated embryos right away, you will need to pay a clinic to freeze and store them.

Remember

If you and your spouse or partner freeze donated embryos for later use, and your relationship ends, ownership of the embryos may be an issue. See the “Using donated embryos: Understanding ownership” section above.

What to do with unused donated embryos

People may have unused donated embryos if they:

  • successfully make a baby; or
  • change their mind about having a baby.

Embryos are stored in a facility for a fee. You may want to continuing storing the embryos. However, usually clinics will require that you decide what will happen to them if you die or if you stop making payments to store them.

If you no longer want to store them, there are several options for what to do with your unused embryos:

  • donate them to another person or couple who are trying to make a baby;
  • donate them for a purpose other than helping someone else have a baby (such as research); or
  • dispose of them.
Be Aware

If you received the donated embryos through your fertility clinic, you may not be able to donate them. For example, the Regional Fertility Program in Calgary allows you to have up to 3 embryos. Once you have a baby, you cannot keep trying to have more babies and any remaining embryos will be donated to someone else participating in their embryo donation program. If you are a client at the Regional Fertility Program and did not receive your donated embryos through their embryo donation program, you can still donate the donated embryos.

Donating to another person or couple

Donating unused embryos to another couple or person may be a good option if you would like to help someone else conceive a child. When the embryo donors gave you the embryos, they gave you their written consent to use the embryos to make a baby. Since the embryo donors already consented to allow someone else to use the embryos to make a baby, you already have the necessary consent to donate the embryos for someone else to make a baby.

Donating embryos for a purpose other than making a baby

There are several uses for your extra embryos other than disposing of them or donating them to another person or couple. These include donating them for:

  • improving assisted reproduction procedures;
  • training for assisted reproduction procedures; or
  • research.

If you are planning on donating your unused donated embryos for any of these purposes, you must have written consent from:

  • the people who donated their embryos to you for the specific purposes; and
  • the people who provided the sperm and the eggs to make the embryos (these may be the same people who donated the embryos) for the specific purposes.

People may donate their sperm, eggs, or embryos to help someone else make a baby. These people may have only wanted their reproductive materials or embryos to be used to make a baby. If they did not already provide consent to donate the embryos for a purpose other than making a baby (for example: research), you must get their consent before you can donate the embryo(s) for this purpose.

For example:

  • Sam and Taylor used their sperm and eggs to make embryos.
  • They donated their unused embryos to Jamie.
  • Sam and Taylor gave Jamie consent to use the embryos to make a baby.
  • Jamie made a baby with one of the embryos and wants to donate the remaining embryo for research.
  • Sam and Taylor only gave their consent to use their extra embryos to make a baby.
  • Sam and Taylor did not give their consent to donate their embryos for research.
  • Before the remaining embryos can be used for research, Sam and Taylor must consent to donate their embryos for research.

More information

For more information about donating your embryos, see the following resources.

Web Embryo Donation Program: For Donors
ReproMed
English
This is a private source. Learn more here.

Web Cryostorage
Regional Fertility Program
English
This is a private source. Learn more here.

Web Embryo Donation
Regional Fertility Program
English
This is a private source. Learn more here.

Web What To Do With Unused Embryos When Your Family Is Complete
Columbia Fertility Associates
English
This is a private source from outside Alberta. Learn more here.

Agreeing in advance: Embryo disposition agreements

Given all of the issues listed above, you may wish to consider coming to an agreement with your partner, in advance, about what will happen to your donated embryos if:

  • you disagree about how to use the embryos;
  • there are any extra or unused embryos;
  • you separate; or
  • one of you dies.

This is called an “embryo disposition agreement.” It is a written contract signed by:

  • people who received donated embryos together (the “recipients”); or
  • the recipients and a clinic.

If there is a disagreement about using, donating, or destroying the embryo, and there is no embryo disposition agreement, the law is uncertain about what happens to embryos in the meantime. The embryos can either stay in storage or be destroyed. If the embryos stay in storage, someone will have to pay the fees to store the embryos.

Most fertility clinics will require that you have an agreement in place outlining what will happen to the embryos if the relationship ends. In some cases, these agreements say that the embryos will be destroyed, donated, or that a court will decide what will happen to them.

Be Aware

Agreements that go against the law cannot be enforced. This means that any agreement must follow the consent requirements. You cannot agree that you do not need to provide consent.

Coming to an agreement about embryo disposition can be done on its own, or in a general domestic contract. For more information about making an embryo disposition agreement, see the “Assisted reproduction agreements” section below. For more general information about making domestic contracts, see the Cohabitation Agreements Information Page and the Pre-nuptial and Marriage Agreements Information Page.

Donor identity and future contact

Children are often curious about their genetic origins. Because of this, your child may one day be interested in knowing the identity of his or her donors.

A donated embryo may come from someone you know. Or, it may come from someone you do not know. Because it is so rare to find someone who will donate an embryo to you, you may not have a choice when it comes to using an embryo from a known or an unknown donor. However, there are certain things that you will need to consider depending on whether you know the people who made the embryo.

Known donors

People often use an embryo from known donors when a family member, friend, or acquaintance made more embryos than he or she plans to use. Using known donors allows you to know more about the donors, including their detailed medical history.

Many people are concerned that if they use a known donor, he or she will be a legal parent to the child. Being a legal parent to a child is called “parentage.” The laws about parentage are made by provincial and territorial governments.

In Alberta, the law says that a donor will not be a parent to a child just because he or she donated reproductive materials or an embryo. However, this does not mean that a donor will never be found to be a parent to the child. A judge may still find a donor to be a parent of the child if he or she is behaving like a parent toward the child.

For more information about parentage in Alberta, see the “Parentage” sections below.

A known donor may also expect to be more involved in the child’s life. This may be beneficial, or it may lead to conflict. Before using the donor’s embryos, you will want to consider discussing with the donor whether:

  • the donor will be involved with the child in the future; or
  • the donor’s identity will be a secret.

You may be able to deal with these concerns in an agreement. For more information, see the “Assisted reproduction agreements” section below.

Unknown donors

Using unknown donors usually means that you know less about the donors, including their detailed medical history. The medical history of a donor may be important if you want to know about what genetic conditions your child might inherit, or if your child becomes sick.

When you order embryos from a fertility clinic, you will be given some information about the donor’s medical history. However, the amount of information you get may change depending on:

  • where you get the embryos; and
  • how much information the donor makes available.

It is often the case that when you use an unknown donor, you will not have access to the donor’s detailed medical and family history.

Unknown sperm donors can usually choose if they would like to be an anonymous donor. Or, they can choose to make their information and identity available to the child when he or she turns 18. Therefore, if you use a clinic, you will have the choice between choosing an “open ID” donor or an anonymous donor.

ReproMed is the only Canadian sperm bank. A “sperm bank” is a place where semen is collected and stored. ReproMed does not allow Canadian sperm donors to take back their consent to release their information. This means that if you get sperm from an open ID donor, the child will have access to his or her donor’s identity once he or she turns 18.

Unknown egg donors may also have the option of making their identity available to the child. However, this varies depending on where you get the eggs from. Unlike with sperm donation in Canada, an egg donor can go through different organizations or agencies to donate.

Some organizations allow an egg donor to:

  • be an open ID donor;
  • be an anonymous donor;
  • let the parents to choose whether they would like to have an open ID donor;
  • make themselves available to the parents if there is an emergency; or
  • exchange information or meet with intended parents.

If you are getting an embryo from an unknown embryo donor, most clinics will not allow you to know the donor’s identity. However, each organization has its own policies, and they can be very different from each other. Be sure you carefully review the information for using a “known donor.”

However, sperm, eggs, or embryos can come from another country. Different countries have different rules. Sometimes the donor can take back their consent to release their information.

This means that even if an open ID donor was originally used, your child may not end up with access to the donor’s identity and information when he or she turns 18.

Be Aware

The law about a donor’s right to privacy and a child’s right to information about his or her background is uncertain in Canada. In British Columbia, a court decided that the donor has a right to remain anonymous. In other words, that a child does not have a right to know a donor’s identity. This generally includes detailed medical information and family history. Several other countries are changing their laws to give donor-conceived children the right to know the identity of their donors (even if the donors asked not to be identified). In the future, this may influence Canada’s laws on assisted reproduction.

Some people may be more comfortable using an unknown donor because it reduces the risk that the donor will try to become a parent to the child. Many people are concerned that if they use a known donor, he or she will be a legal parent to the child. Being a legal parent to a child is called “parentage.” The laws about parentage are made by provincial and territorial governments.

In Alberta, the law says that a donor will not be a parent to a child just because he or she donated reproductive materials or an embryo. However, this does not mean that a donor will never be found to be a parent to the child. A judge may still find a donor to be a parent of the child if he or she is behaving like a parent toward the child.

More information

For more information on this topic, see these sections below:

  • Donor rights and responsibilities
  • How does using a donor impact a child’s rights?

Connecting donors, children, siblings, and parents

Children who are conceived with the help of a donor are often curious about the donor or any donor-conceived siblings they may have. Or, donors may originally choose to remain anonymous, and then decide that they want to connect at a later date.

There are voluntary registries that connect donor siblings, donor-conceived children with their donors, and parents with donors.

For more information, see the following resources.

Web Find information about a donor
Government of Canada
English


Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English


Web Talking to your donor-conceived child
Government of Canada
English

Web Parler à votre enfant conçu grâce à un don
Government of Canada
French


Web Telling Your Child
Donor Conception Network
English

Using a surrogate

Sometimes when people cannot carry a child during pregnancy, they will use a “surrogate.” A surrogate is the woman who agrees to carry, and give birth to, a child for another couple or person. This is usually done with the understanding that:

  • the other person or couple will parent the child once he or she is born; and
  • the surrogate will not be a parent to the child.

A surrogate may:

  • provide the eggs to conceive the child; or
  • carry a child who has no genetic connection to her. This means that the surrogate did not provide the eggs that helped create the embryo.
Be Aware

A woman who makes a baby by having sex will not be considered a “surrogate” under Canadian law. A surrogate must become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a woman is not a surrogate under the law, she will be a legal parent to the child.

For more information on surrogacy, see the following resources.

Web Surrogacy
Regional Fertility Program
English

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English

Web Fertility & Surrogacy Law in Canada: FAQ
Moe Hannah LLP
English
This is a private source. Learn more here.

Web Key Considerations When Thinking About Surrogacy
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.
Be Aware

If you are going to use a surrogate, you will need to use reproductive materials or an embryo. As a result, you will also need to know the laws about using reproductive materials (sperm and eggs), or about using embryos. This information can be found in the sections above.

Types of surrogacy

There are 2 main types of surrogacy: gestational surrogacy and traditional surrogacy.

Gestational surrogacy

A gestational surrogate is a surrogate who has no genetic connection to the child. This means that the surrogate did not provide the eggs to create the embryo. With gestational surrogacy, an embryo is placed in the surrogate’s uterus.

People who use a gestational surrogate may:

  • use their own sperm and eggs to make an embryo;
  • use donated sperm and eggs to make the embryo; or
  • use a donated embryo.

Traditional surrogacy

A traditional surrogate is a surrogate who is genetically connected to the child. This means that the surrogate provided the eggs to create the embryo.

This can happen in 2 ways:

  • the surrogate can be artificially inseminated with sperm; or
  • the surrogate can have eggs removed from her body for in vitro fertilization. Then the in vitro embryo would be placed in her uterus.

The sperm used to make a baby may be from a donor or from the intended father.

Be Aware

Because a traditional surrogate is related to the child, this option may be riskier for the intended parents. The law is unsettled in this area. However, it is more likely that a court will allow a surrogate to have some rights as a parent if she is genetically related to the child.

For more information on the types of surrogacy, see the following resources.

Web FAQs on Surrogacy in Canada: Part 1
Dunphy Best Blocksom LLP
English
This is a private source. Learn more here.

Web What are the Different Types of Surrogacy and What are They Called?
Modern Family Surrogacy Center
English
This resource is from a private source outside Alberta. Learn more here.

Laws about finding and using a surrogate

There are laws that control how you can find and use a surrogate in Canada. The federal government makes these laws, so they are the same everywhere in Canada.

Some of the activities that are illegal in Canada are:

  • paying a surrogate;
  • offering to pay or advertising to pay a surrogate;
  • paying, offering to pay, or advertising to pay someone else (or a company) to find a surrogate for you; and
  • using or trying to use a surrogate who is under 21 years old.

These laws mean that you cannot pay a woman to be a surrogate for you. She must agree to be a surrogate knowing that she will not be paid for carrying or giving birth to your baby. You also cannot “pay” your surrogate with gifts, services, or “hidden payments” such as mortgage payments.

These laws also mean that you cannot pay a surrogacy company to match you with a surrogate. However, organizations can match you with a surrogate if they do so for free.

Failing to follow the laws for assisted reproduction can have serious consequences. You may face up to 10 years in prison. Or, have to pay a fine of up to $500,000. Or both.

Although you cannot pay a woman to be your surrogate, there is an exception that tries to make sure that it does not cost a woman money to be a surrogate. The laws against paying for surrogacy do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone had to pay only because they agreed to do something for you. The expense must be a direct result of being a surrogate.

You are allowed to pay a surrogate for out-of-pocket expenses if:

  • payment happens after she has paid for the expense; and
  • the expense was a result being a surrogate; and
  • the surrogate provided a receipt to prove that she had an expense related to being a surrogate.

An example of an out-of-pocket expense is the cost of maternity clothing.

You can only pay a surrogate for the amount of money that she actually spent.

Be Aware

Even though you cannot pay a surrogate, it can be very expensive to use one. There may be many additional expenses, such as medications and other unexpected costs.

Surrogate mothers may be able to get maternity leave and benefits. Parents who use a surrogate may also be able to get parental leave and benefits. For more information, see the Having a Child Information Page.

For more information on the rules for using a surrogate, see the following resources.

Web Prohibitions related to surrogacy
Government of Canada
English


Web Surrogacy Law
Dunphy Best Blocksom LLP
English
This is a private source. Learn more here.

Web Cost of Surrogacy
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Fertility & Surrogacy Law in Canada: FAQ
Moe Hannah LLP
English
This is a private source. Learn more here.

Finding a surrogate

Paying a surrogate or paying someone to arrange a surrogate for you is illegal in Canada. However, there are other ways to find a surrogate. You may be able to:

  1. Find a known surrogate (such as a friend or family member)
  2. Use an agency
  3. Find a surrogate outside the country

For detailed information about these options and organizations to help, see the Process tab of this Information Page.

What happens if the baby has birth defects?

With any pregnancy, unexpected things may happen. While your surrogate is pregnant with your baby, you may find out that the baby has a birth defect. If this happens, you may consider whether you want to end the pregnancy. However, because you are using a surrogate, you cannot make this decision on your own. You cannot force the surrogate to end the pregnancy.

For this reason, you may wish to consider having a written agreement with the surrogate. These are called “surrogacy agreements.” Surrogacy agreements will make each person think about the different things that might happen. These agreements will often discuss what will happen if they find out that a child has birth defects. For example:

  • Sometimes agreements will say that if the intended parents request her to, the surrogate will end the pregnancy. Or, she will have to pay the intended parents back for expenses.
  • Sometimes an agreement will say that a surrogate will not end the pregnancy no matter what happens.

However, even if she agreed to end the pregnancy in an agreement, you cannot force the surrogate to end the pregnancy if she changes her mind. If the surrogate chooses to continue the pregnancy, this means that your child will be born.

Discussing everyone’s intentions before the surrogate becomes pregnant will make sure that everyone has a better understanding of how each person feels about certain issues that may arise. However, agreements may not guarantee the outcome. For more information, see the “Assisted reproduction agreements” section below.

What if the surrogate changes her mind and wants to keep the baby?

A surrogate may change her mind after the baby is born and she may want to keep the baby. The law in Alberta says that any agreement with a surrogate saying that she has to give up the baby will not be enforced.

 Even though an agreement will not force her to give up the baby, it will show a judge what everyone intended before the child was conceived. It is important to have an agreement in place that addresses everyone’s concerns, expectations, and responsibilities. There is more information about surrogacy agreements in the “Assisted reproduction agreements” section below.

For more information on the law in Alberta, see the following resources.

PDF Alberta's Family Law Act: An Overview
Government of Alberta
English
See p. 5.
 
Web Surrogacy in Canada: Beware of Provincial Differences
Sherry Levitan – Toronto Surrogacy Lawyer
English
This resource is from a private source outside Alberta. Learn more here.

Web Surrogacy
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surrogacy, Egg Donation, Sperm Donation and Fertility Law
Taylor McCaffrey LLP
English
This resource is from a private source outside Alberta. Learn more hereSee “Written Agreements.”

PDF Fruitful Diversity: Revisiting the Enforceability of Gestational Carriage Contracts
York University
English
This resource can be a challenge to read. Learn more here.

Who will be a legal parent to the child once he or she is born?

For the intended parents to be legal parents of the child and for the surrogate to not be a legal parent to a child, a Declaration of Parentage is required. A Declaration of Parentage is an official document from a court saying that someone is either:

  • a parent of a child; or
  • not a parent of a child.

However, whether you or your partner can apply for a Declaration of Parentage will depend on your particular situation. If you cannot apply for a Declaration of Parentage, you will need to adopt the child to be a legal parent.

To find out what is required in your particular situation, see the “Parentage: Who is a parent?” section below.

Donating your reproductive materials (sperm or eggs): An introduction

Donating your “reproductive materials” (sperm or eggs) may be something you consider if you would like to help another person or couple make a baby. Donated sperm may be used for artificial insemination, or for in vitro fertilization. Donated eggs can only be used for in vitro fertilization. Donated eggs and sperm may also be used with the help of a surrogate mother to make a baby.

You can donate as a “known” donor. This means that you know the identity of the person or people who will use your reproductive materials.

Or, you can donate as as “unknown” donor. This means that you do not know the identity of the person or people who will use your reproductive materials.

Be Aware

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a person is not a donor under the law, that person will be a legal parent to the child.

If you are planning on donating your sperm or eggs, there are certain procedures that you should be aware of. Also, you will want to learn about the laws that control how you can donate your sperm or eggs, and whether you will have responsibilities to a child that is born as a result of your donation.

Be Aware

If your reproductive materials have not already been screened and tested, you will likely need to have them tested before you can donate them.

For detailed information about the donation process and where to donate, see the Process tab of this Information Page.

For introductory information about donating your sperm or eggs, see the following resources.

Web Become a donor
Government of Canada
English

Web Devenir un donneur
Government of Canada
French

Web Egg Donors interested in Surrogacy in Canada Online Services
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Egg Donation
ReproMed
English
This is a private source. Learn more here.

Web Becoming a Sperm Donor
ReproMed
English
This is a private source. Learn more here.

Web Sperm Donation in Canada: An Overview
Flowerday Law
English
This is a private source. Learn more here.

The laws and legal issues you will need to know about: An introduction

There are many laws that will affect your decision to donate, and many legal issues that you need to be aware of. For example:

  • whether the law will allow you to donate;
  • whether you can be paid for your donation;
  • what kind of your consent you must provide so that someone else can use your sperm or eggs;
  • whether you will be considered a “parent” to the child once he or she is born (parentage); and
  • whether you will have any rights or responsibilities related to the child.

All of these topics are discussed in more detail below.

Be Aware

How all of these legal issues fit together can be challenging. This is because both the federal government and the provincial/territorial governments have the power to make laws about assisted reproduction. As a result, some legal requirements (the federal ones) are the same all across Canada. However, other legal rules are different in every province. For more information about this, see the section above called “The laws that may apply.”

Federal laws

The laws about collecting and using donated reproductive materials are made by the federal government. This means that they apply all across Canada.

An example is the Assisted Human Reproduction Act and its regulations. This is the law that sets out which donation-related activities are illegal in Canada. Some of the activities that are illegal in Canada are:

  • buying reproductive materials from a donor;
  • offering to buy and advertising to buy sperm or eggs directly from the donor;
  • offering to buy and advertising to buy sperm or eggs from someone acting for the donor;
  • offering to sell and advertising to sell sperm or eggs directly for the donor; and
  • getting reproductive materials from a person who is under 18.

The federal government also made the law that is often called the “Semen Regulations.” This sets out the rules about who is, and who is not, allowed to donate semen. These rules are meant to reduce the risk that the semen will spread sexually transmitted infections to the baby, or the woman carrying the baby. You can find more information on the Semen Regulations below.

Be Aware

The federal government is in the process of making changes to the laws dealing with donated sperm and eggs. These changes are meant to try to control the spread of diseases and infections. Although new regulations have been written, the planned changes are not yet in force. When these changes happen, they will include more restrictions for sperm and egg donation. For more information about these changes, see the section above called “The laws that may apply to you.”

Provincial laws

For some of the legal issues that can come up when using assisted reproduction, or after the baby is born, the laws are made by provincial or territorial governments. For example: laws about parentage. For more information, see:

  • the section above called “The laws that may apply to you”
  • the section below called “Parentage: Who is a parent?”

Sperm donation: Will you be allowed to donate?

Who is allowed to donate?

It is possible to donate your sperm in a private location, such as your home. The law does not set restrictions on this kind of donation.

Be Aware

If you are donating your sperm without the help of a clinic or another medical practitioner, it is important that you make sure that you do not have any sexually transmitted infections or other contagious diseases. You should go to a doctor or clinic to be tested before you donate your reproductive materials. And you should not be a donor if you engage in behaviour that puts you at risk for getting a disease or infection. If you do have an infection or a disease, you may pass it on to the baby, or the woman who becomes pregnant with your sperm. If you are using a clinic or a doctor to donate the reproductive materials, they will test you for infections and diseases before anyone uses your sperm.

If you donate through a clinic, you will have to follow the rules of the “Semen Regulations.” These are meant to control the spread of diseases and infections. Specifically, the Semen Regulations apply to:

  • donors who provide sperm that will be used for insemination (the restrictions do not currently apply for in vitro fertilization); and
  • donors who are not the sexual partner of the woman who will carry the child during pregnancy.
Be Aware

The federal government is in the process of making changes to the laws dealing with sperm used for assisted reproduction. When these changes happen, they will include restrictions for sperm donation that will be used for in vitro fertilization (not just sperm that will be used for insemination).

In addition, there are certain restrictions that apply to who is allowed to donate semen used for insemination in a clinic. These restrictions are called “exclusionary criteria.”

For example, donors cannot:

  • be over the age of 40; or
  • have had sex with a man since 1977.

Also, they may be prevented from donating if:

  • they or their sexual partner received a blood transfusion in the past 12 months; or
  • they have had a non-sterile tattoo or piercing in the past 12 months.

For a complete list of the exclusionary criteria for unknown donors, see the following resource.

Web Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination
Government of Canada
English
See “2. Exclusions.”

Known donors that are restricted as described above may still be allowed to donate their semen. If you are a known donor who falls into one of these categories, you will have to apply to the Donor Semen Special Access Program. If you do not apply for this program, you will not be able to use your sperm for insemination in a clinic. For more information about the Donor Semen Special Access Program, see the following resource.

Web Semen Special Access Program
Government of Canada
English

Testing

Sometimes a sperm donor and the intended parent(s) will make a baby outside of a clinic without the help of a medical practitioner by using artificial insemination (for example: at home). There are certain testing requirements that you may not need to follow if you do everything outside of a clinic.

Be Aware

Even though you may choose to do insemination without the help of a clinic, there are many complex laws that may still affect you. Because the laws are still new, there is some uncertainty about home insemination. As a result, this Information Page does not discuss home insemination.

When semen is donated to a clinic:

  • donors are screened and interviewed;
  • all donors must be tested for sexually transmitted infections;
  • the semen must then be kept in a clinic for at least 6 months; and
  • after 6 months, the donor is tested again for sexually transmitted infections.

The only company in Canada that provides these services is ReproMed. ReproMed is located in Toronto, but you may be able to go through the process without needing to travel to Toronto. The semen must go through this process before it can be used to make a baby.

More information

For more information about the Semen Regulations, see the following resources.




Web Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination
Government of Canada
English
See “C. SEMEN DONOR RECRUITMENT, SCREENING AND TESTING.”

Egg donation: Will you be allowed to donate?

To donate eggs, you will need to have a clinic remove your eggs.

Who is allowed to donate?

There are several things that may prevent you from being able to donate your eggs. For example, a clinic may not accept eggs from a woman who is over a certain age. Or, they may not accept your eggs if you have not had a baby or donated eggs before. This will depend on the particular organization you go to.

Currently, there are no laws limiting egg donations. Any woman over 18 can donate her eggs. However, once the new testing and screening requirements are complete, this will change (see below).

Testing and screening

A clinic will usually require a woman donating eggs to have some testing done. Currently, there are no formal rules that control the tests that need to be done.

The federal government is in the process of making changes to the laws dealing with eggs used for assisted reproduction. These changes are meant to control the spread of diseases and infections.

Although new regulations have been written, the planned changes are not yet in force. These new regulations will require that eggs be screened, tested and quarantined for a certain amount of time before they can be used. If you could have come into contact with specific diseases or infections, this new screening process may make it so that you will be unable to donate your eggs.

Can you be paid to donate?

Under the Assisted Human Reproduction Act, it is against the law in Canada for someone to:

  • buy reproductive materials from you;
  • offer to pay you for your reproductive materials;
  • offer to pay someone acting for you for your reproductive materials;
  • offer to sell your sperm or eggs; or
  • get reproductive materials from a person who is under 18 years old.

This means that you cannot be paid for your eggs or sperm. In addition, you cannot be “paid” with gifts or services.

Although you cannot be paid for your sperm or eggs, there is an exception to try to make sure that it does not cost you money to donate reproductive materials. The laws against paying for reproductive materials do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone had to pay only because they agreed to do something for you. The expense must be a direct result of donating reproductive materials.

To be paid for your out-of-pocket expenses:

  • you must be paid after you have already paid for the expense; and
  • the expense must be a result of donating the reproductive materials; and
  • you must provide a receipt to prove that you had an expense related to donating reproductive materials.

An example of an out-of-pocket expense is the cost of travelling to a clinic to donate reproductive materials.

“Known donor” or “unknown donor”?

Donors often donate to people they know. However, some people also choose to donate to someone they do not know.

Donating to someone you know

People usually become a known donor when a family member, friend, or acquaintance asks them to become a donor. Often when a person becomes a known donor, he or she will have some involvement with the family after the child is born. But this is not always the case. Before donating your reproductive materials, you will want to consider discussing with the intended parents whether:

  • you will be involved with the child in the future; or
  • your identity will be a secret.

Even though you are donating to someone you know, you will still need likely need to be screened and tested. This process will be different depending on whether you are donating sperm or eggs.

  • If you are donating eggs, this process can take place through the clinic or organization you are working with.
  • If you are donating sperm, you will need to go through ReproMed to complete the screening and testing process.

For more information, see the information above called “Egg donation: Will you be allowed to donate?” and “Sperm donation: Will you be allowed to donate?”

People who are considering donating to someone they know may also be concerned that they will have responsibilities as a parent to the child. In Alberta, the law says that a donor will not be a parent to a child just because he or she donated reproductive materials or an embryo. However, this does not mean that a donor will never be found to be a parent to the child. A judge may still find a donor to be a parent of the child if he or she is behaving like a parent toward the child. For example, if you are behaving like a parent to a child, a court may find that you are a parent to that child.

You may be able to deal with these concerns in an agreement. For more information, see the “Assisted reproduction agreements” section below.

Donating to someone you don’t know

People who want to become an unknown donor will need to go through a clinic or an agency.

If you choose to be an unknown donor, you also need to think about what sort of information could be shared in the future. For example, you may be able to choose whether you would like to:

  • be an anonymous (completely secret) donor;
  • have your identity available from the time that you donate;
  • make your identity and information available to a child upon request when he or she turns 18; or
  • make detailed information available to a child but remain anonymous.
Be Aware

Not every clinic or organization will offer all of these options.

Donating your reproductive materials: Consent requirements

General requirements of consent

Donating reproductive materials can be a very emotional experience. It is important that you are absolutely certain that you want to give your reproductive materials to someone to make a baby.

Before someone can use your reproductive materials for assisted reproduction, they must have your written consent. A doctor or a clinic will require your consent before he or she will use the reproductive materials to help the recipient make a baby.

Consent must include:

  • what the reproductive materials can be used for (for example: to make a baby for a person who is not the donor);
  • your written confirmation that you received the information needed to consent (this is called the “Information Requirement”—more information about that is just below);
  • your signature; and
  • the signature of a person who witnessed you signing the consent.

In addition, other general legal rules about consent also apply. For example, in order to give consent, you:

  • must have the mental ability (see definition of “capacity” above) and be able to give consent;
  • must be at least 18 years old;
  • must have given your consent without feeling fear or pressure; and
  • cannot have given consent because you were promised a gift or reward.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

For more general information about consent, see the following resources.





PDF Information for the Consent for Use of Human Reproductive Material
Can-Am Cryoservices
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

The “Information Requirement” for giving consent

Before you can donate reproductive materials, you must truly understand what you are consenting to. To make sure that you understand, you must:

  • be given certain information before you can consent to the use of your reproductive materials; and
  • confirm in writing that you have received this information. A doctor or clinic will require your written consent before beginning any procedure.

The information that you must be given changes depending on what the reproductive materials are being used for.

However, the information must always be in writing and must include:

  • the specific purpose(s) for which the reproductive materials can be used; and
  • information about withdrawing (“taking back”) consent.

If the reproductive materials are being used to make in vitro embryos (and not for artificial insemination), then you must also be given information stating:

  • that there may be extra or unused reproductive materials or embryos, and what consent requirements are needed for someone else to use them;
  • the consent requirements if the couple you are donating to separates or one of them dies; and
  • that if you consent to your reproductive materials being used for teaching about assisted reproduction, or improving assisted reproduction methods, you do not have to provide consent again if an embryo is used for one of those purposes.

For more information about the Information Requirement, see the following resources.



PDF Genesis Fertility Centre Patient Information & Acknowledgement
Genesis Fertility Centre
English
This is a private source. Learn more here. Note that this document is just an example of what a consent form may look like.

Withdrawing your consent

After giving your consent, you may be able to withdraw (take back) your consent. After you have withdrawn your consent, the person who was going to receive the reproductive materials can no longer use them.

To withdraw consent, you must give written notice to the person who intends to use the reproductive materials.

However, there is a time limit for withdrawing consent. You cannot withdraw consent after the recipient(s) have selected the reproductive materials for their use, and confirmed this in writing. For example: A sperm donor could not withdraw consent after the person or people who intend to use the sperm have ordered it from the sperm bank.

Some people try to conceive more than one child with the same donor so that their children are genetic siblings. As a result, you may be asked to donate again. Or, the recipients may freeze some of your reproductive materials the first time you donate. In the future, you may no longer want the recipient(s) to use your reproductive materials. Depending on the situation, you may or may not be able to change your mind. For example, you will not be able to change your mind if the recipient already has the reproductive materials and has told you in writing that he or she plans to use the reproductive materials. But, if the recipient does not have the reproductive materials yet, you can tell them no.

Be Aware

Once you have given consent for someone to use your reproductive materials, and they have selected your reproductive materials in writing, the reproductive materials are no longer “yours.” They will be treated as the “property” of the person or couple you gave them to.

Donating your reproductive materials: Donor agreements and future communication with recipients

If you are planning on donating reproductive materials, you may also want to consider a “donor agreement” and what sort of future communication you can have with recipients.

Donor agreements

There are many uncertainties and risks when you donate your reproductive materials to someone else. A donor agreement is a good idea because it helps everyone involved understand the expectations, rights, and responsibilities.

For more information, see the “Assisted reproduction agreements” section below.

Connecting donors, children, siblings, and parents

You may originally choose to remain anonymous, and then decide that you want to connect at a later date. Similarly, often when children are conceived with the help of a donor, they are curious about the donor.

There are voluntary registries that connect donor siblings, donor-conceived children with their donors, and parents with donors.

Be Aware

To connect through these registries, the other person must also be signed up for the same service.

For more information, see the following resources.

Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English
Donating your embryos: An introduction

After you have made embryos for your use, you may have some left over that you do not plan to use to make a baby. There are many people who cannot have a baby on their own and are looking for a donated embryo. The person or people who receive the embryo (the “recipients”) will use it for in vitro fertilization.

Or, you may wish to donate your embryo for improving reproductive technology or for training or teaching people about embryos.

There are many laws and requirements that you need to know about if you are considering donating your embryos. These are described below.

Be Aware

Some resources will refer to embryos as “reproductive materials.” However, in law, embryos are not considered to be “reproductive materials.” The laws about embryos are different than the laws about reproductive materials. As a result, this Information Page will refer to embryos and reproductive materials as different things.

For more general information about donating your embryos, see the following resources.

Web Become a donor
Government of Canada
English

Web Devenir un donneur
Government of Canada
French

Finding someone to donate your embryos to

Donating your embryos to another person or couple can be a very rewarding experience. You may know someone who you would like to donate your embryos to. Or, you may want to use a clinic or an organization to help you find someone to donate your embryos to.

Be Aware

If you are donating to a recipient from another province or country, you may need to speak with a lawyer. The laws about who is legally a parent of a child (also called “parentage”) are different across Canada and in other countries. You will want to know about these laws before you donate. To find legal help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Donating to someone you know

Donating to someone you know may be a good idea if:

  • you would be more comfortable because you know the person or couple who will raise the child; or
  • you would like to have contact with the child (and the intended parents agree).

Often when a person becomes a known donor, he or she will have some involvement with the family after the child is born. But this is not always the case. This is something that you should consider discussing with the intended parent(s) before you donate your embryos. You will also want to consider entering into a donor agreement before you donate your embryos. This will ensure that everyone understands the rights, responsibilities, and expectations of everyone involved. There is more information about this in the “Assisted reproduction agreements” section below.

The clinic storing your embryos may be able to help you with the process of donating those embryos. Some clinics offer programs for donating to someone you know. Because donating embryos to someone you know can be a very emotional experience, clinics often require that you receive counselling first.

Donating to someone you do not know

There are several organizations or clinics that will help you find someone to receive your embryos (called a “recipient”). These clinics may require that you meet certain criteria before you can donate your embryos. For example, some clinics will not accept embryos if the woman who provided the eggs was over a certain age when the embryos were made. This is because the embryos will have a lower chance of successfully making a baby.

Some people want to know the children who are born from their donated embryos. However, unless you are donating to someone you know, most clinics will not allow you to know the identity of recipients. However, occasionally an organization may require that you have contact with the recipient parent(s) and the child once he or she is born.

More information

For more information on finding someone to donate your embryos to, see the following resources.

Web Embryo Donation
Regional Fertility Program
English
This is a private source. Learn more here.

Web Embryo Donation Program: For Donors
ReproMed
English
This is a private source. Learn more here.

Laws about donating embryos

There are laws that control how people get donated embryos in Canada. These laws are made by the federal government, so they are the same everywhere in Canada. These laws will affect how you are able to donate your embryos.

For example, it is against the law in Canada for someone to:

  • buy embryos;
  • sell embryos; or
  • offer to buy or sell embryos.

This means that you cannot be paid to donate your embryos. You cannot even offer to sell your embryos to someone. A written contract signed by:

  • people who plan to create an embryo together; or
  • the people or person who plan to create an embryo and a clinic.

This agreement usually includes decisions about what will happen to the embryos if:

  • the intended parents disagree about how to use the embryos;
  • one of the intended parents dies;
  • the intended parents end their relationship; and
  • there are any extra or unused embryos.

Failing to follow the laws for assisted reproduction can have serious consequences. You may face up to 10 years in prison. Or, have to pay a fine of up to $500,000. Or both.

Although you cannot be paid for your embryos, there is an exception to try to make sure that it does not cost you money to donate embryos. The laws against paying for embryos do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone had to pay only because they agreed to do something for you. The expense must be a direct result of donating embryos.

To be paid for your out-of-pocket expenses:

  • you must be paid after you have already paid for the expense; and
  • the expense must be a result of donating the embryos; and
  • you must provide a receipt to prove that you had an expense related to donating embryos.

An example of an out-of-pocket expense is the cost of transferring an embryo to a clinic.

You can only be paid back for the amount of money that you actually spent.

There are also consent requirements that you must follow whenever you donate embryos. More information about this is in the “Donating your embryos: Consent requirements” section below.

For more information on the laws that impact you as a donor, see the following resource.


Donating your embryos: Consent requirements

General requirements of consent

Donating embryos to another couple or person is a very important decision and can be a very emotional experience. It is important that you are absolutely certain that you want to donate your embryos.

Because of this, before you can donate your embryos, you must give your written consent to the person or couple who plan to use the embryos. A doctor or a clinic will require your written consent before he or she will use the embryos to help the recipient make a baby.

There are many steps that you need to follow for the consent to meet the requirements.

Consent must include:

  • what the embryos can be used for (for example: to make a baby for a person who is not the donor);
  • your written confirmation that you received the information needed to consent (this is called the “Information Requirement”—more information about that is just below);
  • your signature; and
  • the signature of a person who witnessed you signing the consent.

These requirements are part of the federal Assisted Human Reproduction Act. Because they are made by the federal government, the laws about consent are the same all over Canada.

In addition, other general legal rules about consent also apply. For example, in order to give consent, you:

  • must have the mental ability (see definition of “capacity” above) and be able to give consent;
  • must be at least 18 years old;
  • must have given your consent without feeling fear or pressure; and
  • cannot have given consent because you were promised a gift or reward.

For more general information about consent, see the following resources.




Who needs to give consent to donate an embryo?

Before using an embryo, the recipients always need to have consent from the person or people who created the embryo.

Even if you used donated reproductive materials to make the embryo you now want to donate, you still must provide consent. Usually, the people who donated the reproductive materials do not need to prove consent.

For example:

  • Taylor and Sam went to a fertility clinic and selected donated sperm and eggs.
  • Before Taylor and Sam were allowed to order the sperm and eggs, they had to have the consent from John (the sperm donor) and Suzy (the egg donor).
  • After Taylor and Sam ordered the sperm and eggs, they combined them to make 5 in vitro embryos.
  • Taylor and Sam used 3 of the embryos.
  • Taylor and Sam now have 2 extra embryos and would like to donate them to Jamie.
  • Both Taylor and Sam must provide their consent before Jamie can use the embryos.
  • Jamie does not need John and Suzy’s consent to use the embryos to make a baby.

The exception to this is if you are donating your embryos for a purpose other than making a baby. For example: to improve reproductive technologies, or to train someone about embryos. If you are considering donating your embryos for one of these purposes, you will also need to have consent from everyone who provided reproductive materials to make the embryo (if they haven’t already provided it).

Consent is needed every time an in vitro embryo is used. Who has to provide consent changes depending on the situation and whether you created the embryo to use with another person. Further examples are given below.

If you created embryos on your own

You may have created embryos on your own with the help of donated sperm or eggs. Only you need to provide consent. This is true even if you did not use your own reproductive materials.

For example:

  • Sam made embryos using donated sperm and eggs.
  • Sam wants to donate an extra embryo to Jamie.
  • Jamie only needs Sam’s consent to use the embryo.

You created the embryos with your current spouse or common-law partner

If you created the embryo with your spouse or common-law partner and are still together, both of you must provide your consent. This is true even if you did not use your own reproductive materials to make the embryo.

For example:

  • Taylor and Sam are in a common-law relationship.
  • They decide to make in vitro embryos using Taylor’s sperm and donated eggs.
  • Taylor and Sam want to donate an extra embryo to Jamie.
  • Before Jamie can use the embryo, both Taylor and Sam must provide their consent.
  • It does not matter that only Taylor provided reproductive materials.

You created the embryos with your former spouse or common-law partner before you separated

You may have created embryos with your spouse or common-law partner but you are no longer in a relationship. If this occurs, and one of you wants to donate your unused embryos, the consents that are needed will depend on who provided reproductive materials to make the embryo.

If only one of you provided reproductive materials, only that person would have to provide consent for you to use the embryo.

For example:

  • Taylor and Sam were in a common-law relationship.
  • While they were in a relationship, Taylor and Sam made embryos to use in the future.
  • Taylor provided the sperm and they used donated eggs to make the embryos.
  • Taylor and Sam ended their relationship.
  • Taylor wants to donate the embryos to Jamie.
  • Only Taylor’s consent is needed to donate the embryos to Jamie.
  • Sam could not donate the embryos without Taylor’s consent.

On the other hand, both of you must provide consent to donate the embryo if:

  • you only used donated reproductive materials (neither of you provided sperm or eggs); or
  • you and your spouse or partner provided both the sperm and the eggs.

For example:

  • Taylor and Sam were married.
  • While they were married, Taylor and Sam made embryos to use in the future.
  • Taylor and Sam used both donated eggs and donated sperm to make the embryos.
  • Taylor and Sam got separated before they used the embryos.
  • Taylor wants to donate the embryos to Jamie.
  • Jamie needs both Taylor and Sam’s consent before using the embryos.

More information

For more general information about consent, see the following resources.




The “Information Requirement” for giving consent

Before you can donate embryos, you must truly understand what you are consenting to. To make sure that you understand, you must:

  • be given certain information before you can consent to the use of your embryos; and
  • confirm in writing that you have received this information. A doctor or clinic will require your written consent before beginning any procedure.

The information must always be in writing and must include:

  • the specific purpose(s) for which the embryos can be used; and
  • information about withdrawing (“taking back”) consent.

For more information about the Information Requirement, see the following resource.


Withdrawing your consent

After giving your consent, you may be able to withdraw (take back) your consent. After you have withdrawn your consent, the person who was going to receive the embryos can no longer use them.

To withdraw consent, you must give written notice to the person who intends to use the embryos.

However, there is a time limit for withdrawing consent. You cannot withdraw consent after the recipient(s) have selected the embryos for their use, and confirmed this in writing.

Be Aware

Once you have given consent for someone to use your embryos, and they have selected your embryos in writing, the embryos are no longer “yours.” They will be treated as the “property” of the person or couple you gave them to.

Donating your embryos: Donor agreements and future communication with recipients

If you are planning on donating your embryos, you may also want to consider a “donor agreement” and what sort of future communication you can have with recipients.

Donor agreements

There are many uncertainties and risks when you donate your embryos to someone else. A donor agreement is a good idea because it helps everyone involved understand the expectations, rights, and responsibilities.

For more information, see the “Assisted reproduction agreements” section below.

Connecting donors, children, siblings, and parents

You may originally choose to remain anonymous, and then decide that you want to connect at a later date. Similarly, often when children are conceived with the help of a donor, they are curious about the donor.

There are voluntary registries that connect donor siblings, donor-conceived children with their donors, and parents with donors.

Be Aware

To connect through these registries, the other person must also be signed up for the same service.

For more information, see the following resources.

Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English
Being a surrogate

When people cannot carry a child during pregnancy, they will sometimes use a surrogate to carry, and give birth to, their child.

This is usually done with the understanding that:

  • the couple or person who arranged to have the surrogate carry the child will parent the child once he or she has been born (they are the “intended parents”); and
  • the surrogate will not be a parent to the child.
Be Aware

A woman who makes a baby by having sex will not be considered a “surrogate” under Canadian law. A surrogate must become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a woman is not a surrogate under the law, she will be a legal parent to the child.

Becoming a surrogate is a very generous act. However, there are many emotional and health risks to becoming a surrogate. In addition to the regular risks and experiences that come with pregnancy, you will need to have hormone injections and maybe additional procedures.

For more general information about surrogacy, see the following resources.

Web Surrogacy
Regional Fertility Program
English

Web Risks to Surrogate Mothers
Surrogacy in Canada Online
English

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English

Web Key Considerations When Thinking About Surrogacy
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Sally's Surrogacy Journal
Surrogacy in Canada Online
English

Web FAQ's
Canadian Fertility Consulting
English

Types of surrogacy

There are 2 main types of surrogacy: gestational surrogacy and traditional surrogacy.

Gestational surrogacy

A gestational surrogate has no genetic connection to the child. This means that the surrogate did not provide the eggs to create the embryo. With gestational surrogacy, an embryo is placed in the surrogate’s uterus.

People who use a gestational surrogate may:

  • use their own sperm and eggs to make an embryo;
  • use donated sperm and eggs to make the embryo; or
  • use a donated embryo.

Traditional surrogacy

A traditional surrogate is genetically connected to the child. This means that the surrogate provided the eggs to create the embryo.

This can happen in 2 ways:

  • the surrogate can be artificially inseminated with sperm; or
  • the surrogate can have eggs removed from her body for in vitro fertilization. Then the in vitro embryo would be placed in her uterus.

The sperm used to make a baby may be from a donor or from the intended father.

For more information on the types of surrogacy, see the following resources.

Web FAQs on Surrogacy in Canada: Part 1
Dunphy Best Blocksom LLP
English
This is a private source. Learn more here.

Web What are the Different Types of Surrogacy and What are They Called?
Modern Family Surrogacy Center
English
This resource is from a private source outside Alberta. Learn more here.

Laws about surrogacy

There are laws that control surrogacy in Canada. The federal government makes these laws, so they are the same everywhere in Canada.

Some of the activities that are illegal in Canada are:

  • paying a surrogate;
  • offering to pay or advertising to pay a surrogate;
  • paying, offering to pay, or advertising to pay someone else (or a company) to find a surrogate for you; and
  • using or trying to use a surrogate who is under 21 years old.

These laws mean that you cannot be paid to be a surrogate. You must agree to be a surrogate knowing that you will not be paid for carrying and giving birth to the baby. You also cannot be “paid” with gifts, services, or “hidden payments” such as mortgage payments.

Although you cannot be paid to be a surrogate, there is an exception that tries to make sure that it does not cost a woman money to become a surrogate. The laws against paying for surrogacy do not include payment for out-of-pocket expenses. An "out-of-pocket expense" is money that someone had to pay only because they agreed to do something for you. The expense must be a direct result of being a surrogate.

You are allowed to be paid for out-of-pocket expenses if:

  • payment happens after you have paid for the expense; and
  • the expense was a result being a surrogate; and
  • you provided a receipt to prove that you had an expense related to being a surrogate.

An example of an out-of-pocket expense is the cost of maternity clothing.

You can only be paid back for the amount of money that you actually spent.

For more information on surrogacy laws, see the following resources.

Web Prohibitions related to surrogacy
Government of Canada
English


Web Surrogacy Law
Dunphy Best Blocksom LLP
English
This is a private source. Learn more here.

Web Cost of Surrogacy
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Finding someone who needs a surrogate

You may decide to become a surrogate because you want to help friends or family members who cannot have a baby on their own. Or you may just want to help someone you don’t know to have a baby. If you do not already know someone who needs a surrogate, you may need help finding intended parents.

For detailed information about your options, see the Process tab of this Information Page.

Be Aware

The laws about surrogacy agreements and parentage (who is a legal parent to a child) are different in every province. For information about the law in Alberta, see the “Parentage” sections below. If you find intended parent(s) in another province, the laws in that province may affect your agreement and whether you are considered a legal parent to the child. To find legal information and help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

The issue of parentage

For the intended parents to be legal parents of the child, and for you to not be a legal parent to a child, a Declaration of Parentage is required. A Declaration of Parentage is an official document that says that you are, or are not, a parent to a child. For more information, see the “Parentage” sections below.

The issue of birth defects

As with any pregnancy, sometimes unexpected things may happen. While you are pregnant with the baby, you may find out that the baby has a birth defect. If this happens, the intended parents may want you to end the pregnancy. Because you are the person who is pregnant with the child, the intended parent(s) cannot force you to end the pregnancy.

For this reason, you may wish to consider having a written agreement with the intended parents. These are called “surrogacy agreements.” Surrogacy agreements will make each person think about different things that might happen. These agreements will often discuss what will happen if they find out that a child has birth defects. For example:

  • Sometimes agreements will say that if the intended parents request her to, the surrogate will end the pregnancy. Or, she will have to pay the intended parents back for expenses.
  • Sometimes an agreement will say that a surrogate will not end the pregnancy no matter what happens.

However, even if you sign an agreement saying that you will end the pregnancy, the intended parents cannot force you to end the pregnancy if you change your mind.

Discussing everyone’s intentions before the surrogate becomes pregnant will make sure that everyone has a better understanding of how each person feels about certain issues that may arise. However, agreements may not guarantee the outcome. For more information, see the “Assisted reproduction agreements” section below.

What if the intended parents abandon the baby?

Sometimes the intended parent(s) may change their mind about wanting to take the baby. It is important to have an agreement in place that addresses everyone’s concerns, expectations, and responsibilities. Even though a judge may not force anyone to follow the agreement, it will show what everyone intended before the child was conceived.

For more information, see the following resource and the “Assisted reproduction agreements” section below.

Web Surrogate mother’s nightmare
Toronto Star
English
Parentage: Who is a “parent”?

The term “parentage” refers to being a legal parent to a child.

It is important to be legally recognized as a parent to your child. If you are not a legal parent of the child, you will not be recognized on the child’s birth certificate and other government documents. And it may be difficult to apply for documents such as a passport. Using donated reproductive materials, embryos, or a surrogate may impact who is a legal parent to the child.

Laws about parentage are made by provincial and territorial governments. As a result, they are different across the country.

This section describes the law about parentage in Alberta.

In Alberta, the laws about parentage are found in the Family Law Act. Depending on your situation, you may need to take extra steps to become a legal parent of a child.

According to the Family Law Act, a legal parent refers to a person who is:

  • a biological parent of the a child;
  • a woman who gives birth to a child;
  • when a surrogate is not used, the person who is married to the birth mother, or in a marriage-like relationship with the birth mother;
  • a person who becomes a parent after a Declaration of Parentage was granted (see below); or
  • an adoptive parent (someone who has legally adopted the child).
Be Aware

Parentage does not determine how much time you will get to spend with a child or what your specific rights and responsibilities will be. Parentage only determines whether you are a legal parent of the child.

The starting point in assisted reproduction

According to the law in Alberta, the parents of a child are usually the birth mother and the biological father of the child. However, the law is very different when assisted reproduction is used.

The first person the law views as a parent is the birth mother. The woman who carries the child during pregnancy and who gives birth to the child is the birth mother. It does not matter who provided the reproductive materials. Under this definition, a surrogate would be considered the birth mother. However, the law goes on to clarify how parentage in situations of assisted reproduction will be handled. For more information, continue reading this section.

When a surrogate is not used, in addition to the birth mother, the law also considers who might be the other parent to the child. If the biological father was not a donor, the law also views him as a parent to the child. However, when the biological father is a donor, the law may make “presumptions” that certain people are parents to a child. A presumption is when the law accepts that something is true based on the situation.

For example, it is presumed that a man who is married to the birth mother, or in a marriage-like relationship with the birth mother at the time of conception, is the father of the child. If there is no such person, the law moves on to other presumptions. For more information about that, see the following resources.

PDF Amendments to the Family Law Act - What's New? (Family Law Statutes Amendment Act, 2010)
Government of Alberta
English
Start on p. 4. Note that the law being discussed in this resource is now in force.

Audio/Web Paternity Rights
Calgary Legal Guidance
English

Web Who is a Parent? Not a Simple Question!
Centre for Public Legal Education Alberta
English

PDF Alberta's Family Law Act: An Overview
Government of Alberta
English
Start on p. 5.

Because children can be conceived using assisted reproduction, sometimes having the birth mother and the biological father as legal parents of the child is not what was intended. As a result, depending on the circumstances, intended parents may need to take an additional step to make sure that they are the legal parents of the child. The options are:

  • getting a Declaration of Parentage; or
  • adopting the child.

The steps that you need to take will depend on your particular situation. For more information, continue reading this section under the following heading: “Parentage for children born from assisted reproduction: Starting positions and what can be done from there.”

How the starting point gets changed: Declarations of Parentage and adoption

A Declaration of Parentage

A Declaration of Parentage is an official document from a court saying that someone is either:

  • a parent of a child; or
  • not a parent of a child.

Declarations of Parentage are required in most situations where a surrogate gave birth to the baby. This is to make sure that the intended parents become the legal parents of the child, and that the surrogate is not a legal parent of the child. In situations where a Declaration of Parentage is not possible, adoption will be required (there is more information about that below).

You are only allowed to apply for a Declaration of Parentage in Alberta if the child was born in Alberta. Also, the application for a Declaration of Parentage must be made within 30 days of the child’s birth (unless the Court allows an exception).

Be Aware

You must have the surrogate’s consent to apply for a Declaration of Parentage and have the intended parents become legal parents. You must get the surrogate’s consent after the child is born. Some clinics may also require you to get the consent of the surrogate's spouse or partner. If you do not have the surrogate’s consent, the surrogate will remain the only legal parent to the child.

For detailed information and examples of circumstances when intended parents may need to apply for a Declaration of Parentage, continue reading this section under the following heading: “Parentage for children born from assisted reproduction: Starting positions and what can be done from there.”

For information on how to apply for a Declaration of Parentage under Alberta’s Family Law Act, see the Process tab of this Information Page.

Adoption

To be an adoptive parent, you must go through a formal adoption process. Adoption may be necessary if the intended parent(s):

  • did not provide reproductive materials to conceive a child; and
  • used a surrogate.

For detailed information and an example of the circumstances when intended parents may need to adopt the child after the birth, scroll down this section to the heading: “The intended parents used both donated sperm and eggs or a donated embryo and a surrogate.”

For information about the adoption process, see the Process tab of the Adopting a Child Information Page.

Be Aware

In Alberta, a child can only have 2 legal parents. However, in other provinces, such as British Columbia, a child can have more than 2 parents.

More information

For more information about parentage, see the following resources.



Web A national review of the law of parentage declarations
Canadian Fertility Consulting
English
This is a private source. Learn more here.

Web FAQs on Surrogacy in Canada: Part 2
Dunphy Best Blocksom LLP
English
This is a private source. Learn more here.

Parentage for children born from assisted reproduction: Starting positions and what can be done from there

When a child is born, the law makes certain presumptions about who are the legal parents of the child. A presumption is when the law accepts that something is true based on the situation.

As described above, the law ordinarily begins by looking at the “birth mother” and the “biological father.”

However, in assisted reproduction, sometimes the “birth mother” or the “biological father” is not meant to be a parent to the child. For this reason, when assisted reproduction is used, the law looks to the “intended parents.”

An “intended parent” is a person who uses assisted reproduction to try to make a baby, with the understanding that he or she will act as a parent to the child. This may mean a person or couple who:

  • arranged to use donated reproductive materials (sperm and/or eggs) to have a baby; or
  • arranged to have a surrogate carry a child during pregnancy. This may be done with their own reproductive materials or with donated reproductive materials.

A “donor” who provides reproductive materials and is not an “intended parent” is, as a starting position, not the legal parent of a child created from those reproductive materials. An example of this would be a man who anonymously donated sperm to a sperm bank.

Be Aware

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a person is not a donor under the law, that person will be a legal parent to the child.

This can get quite complicated. Assisted reproduction can happen in many different ways. In each different situation, the law starts by determining who the birth mother is. The usual starting position is that she would be a “legal parent.” However, that may not be what was intended in creating the baby. In some cases, the intended parents may need to take additional steps to become the legal parents of the child.

Some examples of these situations are described below.

Remember

The examples below describe situations where the child is born in Alberta. The law may not be the same in other provinces and territories. If you are involved in assisted reproduction and the child will be born outside of Alberta, you will want to learn about the law in that other jurisdiction. To find legal help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

An intended male parent provided sperm, eggs were donated, and the intended female parent carried the child

In this situation, to make a baby:

  • an intended male parent used his sperm (he is the “biological father”);
  • eggs were donated by a woman other than the intended female parent; and
  • the intended female parent carried the child during pregnancy. She is the “birth mother.”

In this case, the legal parents of the child are:

  • the man who used his sperm (the biological father); and
  • the woman who the carried the child during pregnancy (the birth mother).

For example:

  • Mike and Sam are in a relationship.
  • Mike and Sam used Mike’s sperm and donated eggs to make an in vitro embryo.
  • Sam had the embryo placed in her uterus and she became pregnant.
  • Once the child was born, Mike and the Sam are automatically the legal parents of the child.
  • This is what was intended, so no further legal steps would have to be taken.

An intended male parent provided sperm, eggs were donated, and a surrogate was used

In this situation, to make a baby:

  • an intended male parent used his sperm (he is the “biological father”);
  • eggs were donated by a woman (either by the surrogate or another woman); and
  • the fetus was carried during pregnancy by a surrogate (this means the surrogate is the “birth mother”).

The law would ordinarily view the legal parents of the child as:

  • the man who used his sperm (the biological father); and
  • the woman who carried the child during pregnancy (the birth mother).

Because the birth mother was a surrogate and was not intended to be a legal parent of the child, one of the parties must apply to the Court of Queen’s Bench for a Declaration of Parentage. This could be either:

  • the intended parent who provided the sperm;
  • the person he is married to, or in a marriage-like relationship with; or,
  • the surrogate, who could apply for a Declaration of Parentage stating that she is not a parent to the child.
Be Aware

The surrogate would have to consent to this application.

If the Court grants the Declaration of Parentage:

  • the surrogate would not be a parent,
  • the first parent will be the male parent who provided sperm to make the baby; and
  • the second parent will be the person who was married to (or in a marriage-like relationship with) that first parent at the time of conception.

However, that second parent must have agreed (consented) to be a parent before conception. But, unless proven otherwise, the law will assume that he or she consented.

For example:

  • Sam and Mike are married.
  • They made an in vitro embryo using donated eggs and Mike’s sperm.
  • Sam and Mike used a surrogate, Suzy, to carry the child during pregnancy.
  • Once the child is born, the law would usually view the parents of the child as Mike and Suzy.
  • This is not what was intended. The intended parents are Mike and Sam.
  • One of the parties will need to apply to the Court of Queen’s Bench for a Declaration of Parentage that says that Sam and Mike are the parents of the child and Suzy is not. Suzy would have to consent to this application.
  • If the Court grants the Declaration of Parentage, Sam and Mike will be the legal parents of the child (and Suzy won’t be).

An intended female parent provided eggs, sperm was donated, and the intended female parent carried the child

In this situation, to make a baby:

  • an intended female parent used her eggs;
  • that same intended female parent carried the child during pregnancy (she is the“birth mother”); and
  • sperm was donated by a man who is not the intended male parent.

Under the law, the legal parents of the child are:

  • the birth mother; and
  • a person who she was married to, or in a marriage-like relationship with, when the child was conceived.

However, that second parent must have agreed (consented) to be a parent before conception. In this situation, the law assumes that the partner consented, unless proven otherwise. But that person could have withdrawn this consent before the child was conceived.

For example:

  • Sarah and Taylor are married.
  • Sarah was artificially inseminated with donated sperm.
  • The law assumes that Taylor consented to be a parent of the child because Taylor was married to Sarah when she was artificially inseminated.
  • There is no evidence that Taylor withdrew consent before the conception of the baby.
  • Once the child is born, both Taylor and Sarah will automatically be the legal parents of the child.
  • This is what was intended, so no further steps need to be taken.

An intended female parent provided eggs, sperm was donated, and a surrogate carried the child

In this situation, to make a baby:

  • an intended female parent used her eggs;
  • sperm was donated by a man who is not an intended male parent; and
  • a surrogate carried the child during pregnancy (this means the surrogate is the “birth mother”).

The law would usually view the birth mother (the surrogate) as a legal parent of the child.

Because the surrogate was not intended to be a legal parent of the child, one of the parties must apply to the Court of Queen’s Bench for a Declaration of Parentage. This could be:

  • the intended parent who provided the eggs;
  • the person she is married to, or in a marriage-like relationship with; or
  • the surrogate, who could apply for a Declaration of Parentage stating that she is not a parent to the child.
Be Aware

The surrogate would have to consent to this application.

If the Court grants the Declaration of Parentage:

  • the surrogate would not be a parent,
  • the first parent will be the female parent who provided eggs to make the baby; and
  • the second parent will be the person who was married to (or in a marriage-like relationship with) that first parent at the time of conception (if such a person exists).

However, that second parent must have agreed (consented) to be a parent before conception. But, unless proven otherwise, the law will assume that he or she consented.

For example:

  • Sarah and Taylor are in a marriage-like relationship.
  • They decide to make an in vitro embryo using Sarah’s eggs and donated sperm.
  • Sarah and Taylor used a surrogate to carry and give birth to the child.
  • Once the child was born, the law would usually assume that the birth mother was a legal parent to the child.
  • This is not what was intended. The intended parents are Sarah and Taylor.
  • One of the parties will need to apply to the Court of Queen’s Bench for a Declaration of Parentage that says that Sarah and Taylor are parents and the surrogate is not. The surrogate would have to consent to this application.
  • If the Court grants the Declaration of Parentage, Sarah and Taylor will be the legal parents of the child (and the surrogate won’t be).

An intended female parent provided eggs, an intended male parent provided sperm, and the intended female parent carried the child

If the intended parents used their sperm and eggs and one of them carried and gave birth to the child, the law would view both of them as legal parents to the child.

For example:

  • Mike and Sarah want to have a baby together but they cannot do so by having sex.
  • They decide to make an in vitro embryo using Mike’s sperm and Sarah’s eggs.
  • Sarah has the embryo placed in her uterus.
  • Once the child is born, both Mike and Sarah will automatically be legal parents to the child.
  • This is what was intended, so no further steps need to be taken.

An intended female parent provided eggs, an intended male parent provided sperm, and a surrogate carried the child

In this situation, in order to make a baby:

  • an intended female parent used her eggs;
  • an intended male parent used his sperm (he is the “biological father”); and
  • a surrogate carried the child during pregnancy (the surrogate is the “birth mother”).

The law would usually view the legal parents of the child as:

  • the birth mother (in this case, the surrogate); and
  • the biological father.

Because the surrogate was not intended to be a legal parent of the child, one of the parties must apply to the Court of Queen’s Bench for a Declaration of Parentage. This could be either:

  • the intended female parent who provided the eggs;
  • the intended male parent who provided the sperm; or
  • the surrogate, who could apply for a Declaration of Parentage stating that she is not a parent to the child.
Be Aware

The surrogate would have to consent to this application.

If the Court grants the Declaration of Parentage:

  • the surrogate would not be a parent,
  • the intended parents will be the “legal parents.”

For example:

  • Sarah and Mike are married.
  • They decide to make an in vitro embryo using Sarah’s eggs and Mike’s sperm.
  • Sarah and Mike used a surrogate, Jane, to carry and give birth to the child.
  • Once the child was born, the law would usually view Jane and Mike as legal parents of the child.
  • Because Jane was a surrogate, this is not what was intended. The intended parents are Mike and Sarah.
  • One of the parties will need to apply to the Court of Queen’s Bench for a Declaration of Parentage that says that Mike and Sarah are the parents of the child, and that Jane is not. Jane would have to consent to this application.
  • If the Court grants the Declaration of Parentage, Mike and Sarah will be the legal parents of the child (and Jane won’t be).

The intended parents used both donated sperm and eggs or a donated embryo and the intended mother carried the child

In this situation, in order to make a baby:

  • the intended parents use donor eggs and sperm or a donated embryo; and
  • the intended mother carries the child during pregnancy (she is the “birth mother”).

The law would usually view the legal parents of the child as:

  • the birth mother; and
  • a person who she was married to, or in a marriage-like relationship with, when the child was conceived.
Remember

The partner must have agreed (consented) to be a parent before conception. But, unless proven otherwise, the law will assume that he or she consented.

For example:

  • Lily and David are in a marriage-like relationship.
  • They want to have a baby together but cannot do so by having sex.
  • Their friend donated his unused embryos for Lily and David to use.
  • Lily had the embryo placed in her uterus.
  • The law assumes that David consented to be a parent to the child because David was in a marriage-like relationship with Lily when the embryo was placed in her uterus.
  • There is no evidence that David withdrew consent before the embryo was placed in her uterus.
  • Once the child is born, both Lily and David are automatically legal parents to the child.
  • This is what was intended, so no further legal steps need to be taken.

The intended parents used both donated sperm and eggs or a donated embryo and a surrogate

In this situation, in order to make a baby:

  • the intended parents use donor eggs and sperm OR a donated embryo; and
  • a surrogate carries the child during pregnancy (she is the “birth mother”).

The law would usually view the legal parent of the child as:

  • the birth mother (who is the surrogate).

The surrogate was not intended to be a legal parent of the child. However, neither intended parent is a biological parent to the child. As a result, they cannot apply for a Declaration of Parentage.

Because of this, the intended parents will need to adopt the child from the “birth mother” (surrogate) once the child is born.

For example:

  • Reese and James are married.
  • They used donated sperm and donated eggs to make an in vitro embryo.
  • They used a surrogate to carry the baby during pregnancy.
  • Once the baby is born, the law assumes that the birth mother (in this case, the surrogate) is the legal parent to the child.
  • This is not what was intended. The intended parents are Reese and James.

For Reese and James to become legal parents to the child, they have to adopt the child. For information about adoption, see the Adopting a Child Information Page.

Parentage: Can a donor be a “parent”?

People who donate reproductive materials or embryos will likely wonder if they will have rights or obligations as a “parent” to any child that is conceived. This is a concern whether a donor chooses to donate to:

  • people they don’t know (as an “unknown donor”); or
  • someone they know (as a “known donor”).
Be Aware

A person who helps someone else have a baby by having sex is not a “donor” under Canadian law. For either person involved to be considered a donor, the woman must have become pregnant by being artificially inseminated or by having an embryo placed in her uterus. If a person is not a donor under the law, that person will be a legal parent to the child.

Unknown donors

Generally, when people use reproductive materials or embryos from an unknown donor, they come from a clinic or an organization. The donor may have a choice about how much information he or she shares with the recipients, and whether the recipients will ever get to know who the donor was (the donor’s “identity”).

  • The donor can be “anonymous,” which means that the identity of the donor is never known (this is called a “closed ID” donor).
  • The donor can give their identity from the beginning (this is called an “open ID” donor).
  • The donor can agree to release their identity after the child becomes an adult (this is called an “identity release” donor).

In Alberta, the law does not view a donor as a parent just because he or she donated reproductive materials or embryos. To be considered a parent, there must be some other parental role that the donor has taken on.

Because of this, there is usually no contact between the people involved. Or, there is no contact between the people until the child turns 18 years old. This would prevent the donor from taking on any such “parental” role.

Known donors

If the donors and the recipients already know each other

In some cases, the donor and the recipient family will already know each other. For example: a woman may donate her eggs to her sister.

In Alberta, simply donating reproductive materials or embryos does not automatically make the donor a parent of the child. To be considered a parent, a donor would also have to intend to be a parent of the child. This usually includes presenting yourself as the parent (or future parent) and behaving as a parent (or future parent) would tend to behave.

A judge may find a donor to be the parent of the child if he or she is behaving like a parent towards the child. For example, if the donor is living with, and in a relationship with, a parent of the child.

If there is some confusion as to whether the donor has been behaving like a parent to a child, a judge would likely consider what is in the best interests of the child to determine if the donor has any parenting rights and responsibilities.

The best interests of the child are factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child. For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

Determining that a donor is a parent to a child would be difficult and would require a very close parent-like relationship.

In many cases, the intended parent(s) and the donor can try to address this issue in advance by having an agreement that says that no one involved intends for the donor to be a parent to the child. You can learn more about this in the “Assisted reproduction agreements” section below.

Be Aware

Such a contract may not be enough. If a person signs such a contract but then behaves like a parent, a judge may still rule that they are indeed a parent. For example: there was a case in Alberta where a couple were living together and the woman used donor sperm to become pregnant. Her partner (who was not the donor) did not want to be a father, so they had an informal agreement. Despite this fact, the judge found that his behaviour (living with her) put him into the position of a parent.

For more information, see the following resources.

Web Doe v. Alberta, 2007 ABCA 50
CanLII
English

Web When does a sperm donor have parental rights?
The Globe and Mail
English

Web Sperm and egg donors on hook for child support?
Family and Fertility Law Ontario
English
This resource is from a private source outside Alberta. Learn more here.

If donor identity becomes known

The identity of the donor will often not be known at all to the recipients. But sometimes:

  • donors agree to provide some information to the recipients;
  • donors may choose to make their information available in the future; or
  • depending on the clinic, recipients may be told the identity of the donor from the very beginning of the process. There are even some organizations that will only allow donations where the people involved meet and stay in contact.

In Alberta, donating reproductive materials or embryos does not automatically make the donor the parent of the child. This is true whether the donor’s identity is known or unknown. As a result, donors are not, as a starting point, considered parents.

However, this does not mean that they can never be considered parents. A judge may find a donor to be the parent of the child if he or she is behaving like a parent toward the child. For example, if the donor is living with, and in a relationship with, a parent of the child.

If there is some confusion as to whether the donor has been behaving like a parent to a child, a judge would likely consider what is in the best interests of the child to determine if the donor has any parenting rights and responsibilities.

The best interests of the child are factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child. For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

Determining that a donor is a parent to a child would be difficult and would require a very close parent-like relationship.

For more information, see the following resource.

Web When does a sperm donor have parental rights?
The Globe and Mail
English
Donors and children’s “rights”

In general, when a child is someone’s “biological” child, that child has “rights” with respect to the biological parent. But that is not automatically the case with donor-conceived children. In Alberta, a donor is not automatically a “parent” to a child.

This may raise some questions about the “rights” of any child who is born through assisted reproduction. For example:

  • Does the child have the right to know the donor’s medical or family history?
  • Does the child have the right to know the identity of the donor?
  • Does the child have the right to know about any siblings he or she may have?
  • Does the child have the right to have contact with the donor?
  • Does the child have the right to child support from the donor?

The answers to these questions will vary, depending on the circumstances.

Knowing the donor’s medical history, family history, or identity

Unknown donors

Generally, when people use reproductive materials or embryos from an unknown donor, they come from a clinic or an organization.

These clinics and organizations may have rules about how much information is shared with the recipients. Often, medical and family history is collected and shared with the recipients (but not necessarily).

There may also be rules about sharing the donor’s identity. Some clinics require that the donor’s identity be shared. Others may give donors a choice about how much information to give.

  • The donor can be “anonymous,” which means that the identity of the donor is never known (this is called a “closed ID” donor).
  • The donor can give their identity from the beginning (this is called an “open ID” donor).
  • The donor can agree to release their identity after the child becomes an adult (this is called an “identity release” donor).

In some countries, donor-conceived children have a right to know the identity of the donor their parents used to conceive them. Currently, this is not the law in Canada. In 2012 in British Columbia a court decided that the donor has a right to remain anonymous, and that the donor-conceived child did not have a right to know her donor’s identity. To read this case, see the following resource.

Known donors

Sometimes, intended parents already know the donor. As a result, the child conceived from a known donor usually has access to certain information, such as detailed medical or family history. However, it is up to the parents to decide whether the child knows the identity of the donor. As described above, in Canada, children do not currently have a right to know the identity of their donors.

More information

For more information on finding out about donors, see the following resources.

Web Talking to your donor-conceived child
Government of Canada
English

Web Parler à votre enfant conçu grâce à un don
Government of Canada
French


Web Find information about a donor
Government of Canada
English




Contact with a donor, or child support from a donor

In Alberta, simply donating reproductive materials or embryos does not automatically make the donor a “parent” of the child. As a result, a donor is not automatically a guardian, and a child does not automatically have a right to financial support. In order for such rights to arise, there must be some other parental role that the donor has taken on.

However, this does not mean that a donor can never be “parent,” or that a donor-conceived child will never be considered a “child” of the donor. A judge may still find a donor to be the parent of the child if he or she is behaving like a parent toward the child. This is true whether the donor was known or unknown. An example of behaving like a parent to the child may be if the donor is living with, and in a relationship with, a parent of the child.

Sometimes, known donors maintain a close relationship with the parents and the child after he or she is born. A close relationship between a donor and a child will not normally make the donor legally or financially responsible for the child.

If there is some confusion as to whether the donor has been behaving like a parent to a child, a judge would likely consider what is in the best interests of the child to determine if the donor has any parenting rights and responsibilities.

The best interests of the child are factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child. For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

Determining that a donor is a parent to a child would be difficult and would require a very close parent-like relationship.

Knowing other donor-conceived siblings

In Canada, donor-conceived children currently do not have a “right” to know about any other donor-conceived siblings. However, this does not mean that it is never possible to know about any such siblings.

If the donor was known, the parents may already have this information.

If the donor was unknown, clinics sometimes have this information. Depending on where the intended parents got the reproductive materials or embryo, there may be the option to connect with other families who used the same donor(s). This option is usually called a “sibling registry.” There is also an international Donor Sibling Registry that you can sign up for to try to find siblings.

Sometimes donors, children, siblings, or parents can also voluntarily sign up with a registry. Registries allow people involved in making a donor-conceived child and children to connect with each other. Because the process is completely voluntary, there is no guarantee that you will find someone you are looking for.

For more information on donor sibling registries, see the following resources.

Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English
Assisted reproduction agreements

If you use assisted reproduction, there can be many uncertainties and risks. The kinds of issues that may arise will differ depending on many things, including:

  • whether you are using your own reproductive materials;
  • whether you are using donated sperm and/or eggs;
  • whether you are using donated embryos;
  • whether you are using a known donor or unknown donor;
  • whether you are using a surrogate; and
  • what you want to have happen in the case of unplanned events (such as unused materials, separation, divorce, and death).

Given all of the uncertainties, you may wish to consider signing an agreement that governs the process. Such agreements can ensure that everyone understands their expectations, rights, and responsibilities.

It is always better to put agreements in writing, whether typed or handwritten. This is because, when the agreement is not in writing, it can be impossible to prove what exactly was agreed to.

The purpose of the agreement

An agreement is a contract between 2 or more people that can be enforced by the courts. The people who take part in this agreement are called “parties.” It is different from a casual agreement or promise because if one party to the contract does not hold up “their end of the deal,” they can be sued by the other party in court. Once a valid contract has been created, it cannot be changed unless all the parties to the contract agree to the change.

Agreements are taken very seriously. However, there are no guarantees that an agreement will provide you with complete certainty. A judge may still find that an agreement is not enforceable, or decide that the agreement does not have to be followed. For example, a judge may view the best interests of the child as more important than a specific part of the agreement.

In a case where a judge decides not to follow an agreement, he or she may still use the agreement as a guide. It can help the judge to understand what the parties wanted, and what they understood their responsibilities to be, when they created the agreement.

For detailed information about how to make an assisted reproduction agreement, see the Process tab of this Information Page.

Assisted reproduction after death: An introduction

Assisted reproduction after death occurs when:

  • reproductive materials or embryos from a spouse or common-law partner are used after he or she has died; or
  • reproductive materials from a spouse or common-law partner are removed from a person’s body after they have died. The person must have consented to this before they died.

“Assisted reproduction after death” does not include situations where a baby has already been conceived before the spouse or common-law partner died. It only refers to making a baby with a spouse or common-law partner’s reproductive materials after he or she died. In other words, a woman must become pregnant after the death.

Be Aware

You cannot use just anyone’s reproductive materials after they die. The person must have been your spouse or common-law partner at the time of his or her death.

Even though you may be allowed to use the reproductive materials or embryos, there may be some issues that arise.

For example, you may need to consider:

  • who is a legal parent (parentage);
  • whether your child can inherit from the deceased person or his or her family;
  • the possibility of family maintenance and support from the deceased person’s estate; and
  • whether your child is eligible for any benefits.

These issues are discussed in the sections that start with “Assisted reproduction after death” below.

For general information on the legal requirements for using reproductive materials or embryos, see the “Using your own reproductive materials” and “Using your own in vitro embryos” sections above.

Be Aware

If the child is born outside of Canada, that child may not have Canadian citizenship. For the child to be a Canadian citizen, he or she must be a biological child of a living Canadian citizen. In other words, the living parent must have provided sperm or eggs to make the baby. A child born outside the country will not become a citizen because he or she is the biological child of a deceased Canadian citizen.

Assisted reproduction after death: Who is a parent?

Parentage refers to who are the legal parents of a child. Parentage is important to establish to make sure that you have legal rights as a parent, and that your child has legal rights as your child.

In the case of assisted reproduction after death, you must consider:

  • if you are a legal parent to the child; and
  • if your deceased spouse or common-law partner is a legal parent to the child.

Whether or not the deceased person is a legal parent impacts if your child will be able to inherit from the deceased, and if he or she is eligible for any benefits.

The law about parentage for assisted reproduction after death is still very new. In many cases, it does not allow for a deceased parent to become a legal parent to the child. The requirements and outcomes depend on your particular situation. More information is provided below.

Be Aware

It is possible for a deceased parent to be recognized as a parent, but not be able to be a registered parent with Vital Statistics. This limits the child’s ability to get many of the benefits that he or she would normally get. It also means that the child will not be able to take the deceased parent’s last name if it is different than the surviving parent’s last name.

Parentage for the deceased when a surrogate is not used

In assisted reproduction after death, there are 2 situations where a surrogate would not be used. Each would have a different outcome for the parentage of the deceased.

If the deceased is a heterosexual man

In this situation:

  • the sperm came from the deceased heterosexual man (biological father); and
  • the surviving partner carried the child during pregnancy. She is the “birth mother.”

The birth mother (surviving partner) is automatically a legal parent to a child.

According to the law, the biological father is automatically a legal parent to the child. However, there is a problem. In Alberta, to be registered with Vital Statistics as a legal parent to a child, you must sign the birth registration document. In this case, the father died before the child was conceived so he cannot sign the birth registration document. Because the father cannot sign the document, he cannot be registered as the father of the child. This means that for any rights or benefits that require proof of parentage on a birth certificate, the child will encounter difficulties.

If the deceased is a homosexual woman

In this situation:

  • the eggs or embryo came from the deceased homosexual woman; and
  • her surviving partner carried the child during pregnancy. She is the “birth mother.”

The birth mother (the surviving partner) is automatically a legal parent to a child. The deceased woman whose eggs or embryo were used to make the baby would not be a legal parent.

Parentage for the deceased when a surrogate is used

In this situation:

  • reproductive materials or embryos from a deceased spouse or common-law partner were used (so the deceased is an intended parent); and
  • a surrogate carried the child during pregnancy. She is the “birth mother.”

The surrogate is not an intended parent, so someone could apply to a court for a Declaration of Parentage after the birth. A “Declaration of Parentage” is an official document that says that a person is, or is not, a parent to a child. The Declaration of Parentage can:

  • say that the surrogate is not a legal parent;
  • recognize the deceased as a legal parent; and
  • allow the surviving parent to change the birth registration with Vital Statistics to show the deceased parent as a legal parent.
Be Aware

To get a Declaration of Parentage under Alberta’s Family Law Act, the child must have been born in Alberta.

For more information about Declarations of Parentage, see the “Parentage” sections above.

The issue of parentage for the deceased when a surrogate is used

A person who wants to use a deceased spouse’s or common-law partner’s reproductive materials or embryos may need to use a surrogate to make a baby. When a surrogate is used, someone must apply to a court for a Declaration of Parentage. A “Declaration of Parentage” is an official document that says that a person is, or is not, a parent to a child. A Declaration of Parentage can:

  • recognize the intended parent as the legal parent; and
  • allow you to change the birth registration with Vital Statistics to show the deceased parent as a legal parent.

There is more information about Declarations of Parentage in the “Parentage” sections above.

Be Aware

To get a Declaration of Parentage under Alberta’s Family Law Act, the child must have been born in Alberta.

Parentage for the surviving person when a surrogate is used

When using a surrogate, there are 2 different situations that will affect the parentage of the surviving person. Each would have a different outcome.

Both the surviving parent and the deceased parent provided reproductive materials or the embryo

In this situation:

  • the deceased partner provided reproductive materials or an embryo;
  • the surviving partner also provided reproductive materials or an embryo; and
  • a surrogate carried the child during pregnancy. She is the “birth mother.”

The surrogate was not intended to be a parent, so someone must apply to a court for a Declaration of Parentage. In this case, either the surviving parent or the surrogate could apply. The Declaration of Parentage will:

  • say that the surrogate is not a legal parent;
  • recognize the intended parents as the legal parents; and
  • allow you to change the birth registration with Vital Statistics to show both of you as legal parents.

The surviving person did not provide reproductive materials or the embryo

If you did not provide sperm, eggs, or an embryo to make a baby and are using a surrogate, you will need to adopt the child from the surrogate once he or she is born.

More information

For more information about parentage after death when using assisted reproduction, see the following resources.


PDF Assisted reproduction after death: Parentage & implications
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here.

Web Who is a Parent? Not a Simple Question!
Centre for Public Legal Education Alberta
English

Web After-born Children: Succession Law and Posthumous Conception
Miller Thomson LLP
English
This is a private source. Learn more here.
Assisted reproduction after death: Inheritance and benefits

Inheriting from a deceased parent or his or her relatives

Parentage affects the child’s ability to inherit. This may include inheritance from the deceased parent or the deceased parent’s family members. A child will generally not be able to inherit from a parent or the parent’s family members if he or she is not a “legal” child of the deceased parent.

It is possible for a person to write a Will that includes a child who may be conceived after his or her death. Making this type of Will can be very complicated. You will need to speak to a lawyer for this purpose. See the Working with a Lawyer Information Page.

When a person dies without a Will, Alberta law sets out an ordered list of people who can inherit their estate. The list includes immediate family members, other relatives and children of relatives of the deceased person.

In Alberta, if the deceased parent died without a Will, a child who was conceived after the death of the parent cannot inherit.

If the deceased parent has relatives who die without a Will:

  • A child who is conceived after the parent’s death but before the relative’s death may inherit from that relative.
  • A child who is conceived after a relative dies will not inherit from that relative.

For more information, see the following resources.

Web After-born Children: Succession Law and Posthumous Conception
Miller Thomson LLP
English
This is a private source. Learn more here.

PDF Succession and Posthumously Conceived Children
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here.

Family maintenance and support

Sometimes a person can apply to a court for financial support for a child from the estate of a deceased parent. This application may be made when the deceased person did not include his or her child in a Will.

To apply for maintenance and support, the child must have been conceived before the death of the parent. Because of this, you could not apply for maintenance and support for a child born using an embryo or reproductive materials from a deceased person.

Benefits as a “legal” child

Children who are born after a parent dies are often entitled to certain benefits. However, this may not be the case if the child was not conceived before the parent died.

Canada Pension Plan

A child conceived after the death of a parent would not be able to get any benefits under the Canada Pension Plan. To be able to get a benefit under the Canada Pension Plan, a child must be born at the time of the parent’s death.

Workers’ Compensation

A person may die from an accident at work. When this happens, his or her children may get money from Workers’ Compensation. However, a child can only get money from Workers’ Compensation if he or she was alive at the time of his or her parent’s death. A child conceived after the death of his or her parent would not be able to get compensation.

LGBTQ considerations

For LGBTQ people, making a baby will usually require some form of assisted reproduction. Depending on your situation, you may need to find a sperm, egg, or embryo donor, and maybe a surrogate. You will need to know what laws and requirements apply based on your needs.

In Canada, the laws around assisted reproduction are no different for LGBTQ couples than they are for anyone else. Whether you use a surrogate or an egg, sperm, or embryo donor, you will be guided by the same laws and approaches described above. Also, many of the resources listed above are written specifically with the LGBTQ community in mind.

However, there may be some difficulties if you have transitioned, or are in the process of transitioning. Whenever you involve the law, you must identify yourself and you must always identify yourself in the same way. This can take some extra work. For example, if your family relationships arose while you were still using the name and/or gender assigned at birth, you may have to take additional steps to show that you are the same person. You may need to prove that you meet all the requirements to make your court applications.

For more information about this, see the following resources.


Be Aware

Gay men, or male-to-female trans people who have had sex with a man, will have to apply for the Donor Semen Special Access Program if they use artificial insemination and a surrogate. For more information, see the following resource.

Web Semen Special Access Program
Government of Canada
English
Costs and paying for assisted reproduction

Assisted reproduction can be very expensive. The exact cost will depend on the procedures that you use.

For some procedures and medication, you may be able to get some money back from other sources, including:

  • Alberta Health Care;
  • your private insurance coverage; and
  • programs through non-profit organizations.

You may also be able to recover a bit of the cost by claiming certain medical expenses on your tax return.

Not all of these options will work for every person and some only apply to certain procedures.

Each of these options is described in more detail below.

For more information on the cost of assisted reproduction, see the following resources.

Web Cost of fertility treatments in Canada
BabyCenter Canada
English
This resource is from 2012, so some information may be out of date.


Web The cost of infertility
Financial Post
English

Web In Vitro Fertilization for Infertility
Government of Alberta
English

Web Cost of Surrogacy
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Fee Schedule
ReproMed
English
This is a private source. Learn more here.

Web Insurance/IVF funding
Infertility Network
English

Web Calgary In Vitro Fertilization
Effortless IVF, Inc.
English

Web In Vitro Fertilization
Regional Fertility Program
English
See “Costs and Fees."

PDF Status of Public Funding for In Vitro Fertilization in Canada and Internationally
Canadian Agency for Drugs and Technologies in Health
English
This resource is from 2010, so some information may be out of date.

Web How does infertility impact finances?
Advisor Group
English
This is a private source. Learn more here.

Alberta Health Care

Currently, Alberta Health Care does not pay for any assisted reproduction procedures.

However, Alberta Health Care does pay for certain things that can help you determine whether you need assisted reproduction. For example, testing for infertility. In addition, if your infertility is caused by a medical condition that can be fixed, Alberta Health Care may cover medical care to treat that condition.

Be Aware

In other provinces, such as Ontario, there is more funding for assisted reproduction. However, the funding in these provinces is also limited.

For more information on what Alberta Health Care covers, speak to your doctor.

Private insurance coverage

Some insurance plans may provide some coverage for certain kinds of assisted reproduction. Exactly what and how much the insurance provider will cover will also depend on your insurance plan.

The following tool can help you find out if your insurance provider will cover assisted reproduction. For more information, contact your insurer.

Interactive Navigating Your Insurer
Equitus Consulting Inc.
English
Note that you will have to provide information about your specific insurance plan.

Non-profit organizations

There are non-profit organizations that have programs to help with the cost of certain kinds assisted reproduction. You must meet certain conditions before you can get funding from these organizations. Also, the programs may not cover all types of procedures.

Some examples of non-profit organizations that have assisted reproduction programs are listed in the following resources.

Web How to apply for assistance
Generations of Hope Fertility Assistance Fund
English

Web Cost Reduction Program for Men
Fertile Future
English

Web Cost Reduction Program for Women
Fertile Future
English

Claiming medical expenses for fertility drugs or in vitro fertilization on your tax return

You may be able to claim medical expenses for prescription fertility drugs or in vitro fertilization on your tax return. This is part of the Medical Expense Tax Credit. You may not claim expenses for any other type of assisted reproduction under this tax credit.

A tax credit is an amount that can be subtracted from the total amount of taxes you owe. This happens before you submit your tax return to the government.

Examples of in vitro fertilization expenses that may be claimed as part of the Medical Expense Tax Credit include:

  • the procedure to remove the eggs from the woman;
  • freezing sperm or eggs before the procedure;
  • storing embryos before they are used;
  • other testing that happens before or during in vitro fertilization; and
  • the procedure to place the embryo inside the woman’s uterus.

This does not include donations to a sperm bank.

Be Aware

As with all medical expenses, you can only claim the portion that has not been paid back to you by any insurance you may have. For example: You paid $12,000 for IVF, but your insurance company gave you back $2,000. You can only claim $10,000 as medical expense. A portion of this will be subtracted from the total amount of taxes you owe. If the payments occur in different tax years, this could be more complicated. You may need to speak with an accountant.

For more information about medical expense tax credits and claiming expenses, see the following resources.



Web What Qualifies As Medical Expenses When Filing Taxes?
Intuit Canada
English
This is a private source. Learn more here.

Web Medical Expense Tax Deductions in Canada
Intuit Canada
English
This is a private source. Learn more here.

Web Allowable Medical Expenses on Tax Returns
Intuit Canada
English
This is a private source. Learn more here.

Web Canadian IVF Medical Expense Tax Credit Calculators
IVF.ca
English
This is a private source. Learn more here.

Web How does infertility impact finances?
Advisor Group
English
This is a private source. Learn more here.

Web Non-Refundable Tax Credits: Other
Flaim Wolsey Hall, Chartered Accountants
English
This resource is from a private source outside Alberta. Learn more here.
Fertility tourism

Some people decide to go outside of Canada for assisted reproduction.

There are many risks to going outside the country for assisted reproduction. Depending on which country you go to, the laws may be different. You will likely want to speak with a lawyer in the country you plan to travel to. To find legal information and lawyers in other countries, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Depending on the type of assisted reproduction you are travelling for, you may need to find out:

  • how the country you are travelling to determines who a parent of a child is;
  • the impact on the citizenship of the child; and
  • if a surrogate or a donor would get any rights as parent.

It is also important that you consider your health and safety, and the health and safety of your future children. Some of the questions that you may need to ask if you are travelling abroad are:

  • Is the information you received about the donor or surrogate reliable?
  • Are you sure that the donor or surrogate is healthy?

For more information, see the following resources.

Web Fertility treatments outside of Canada
Government of Canada
English


Web Does reproductive tourism treat women like cattle?
Huffington Post Canada
English

Web News: Fertility tourism
Infertility Network
English

PDF Ethical concerns for maternal surrogacy and reproductive tourism
Journal of Medical Ethics
English
This resource can be a challenge to read. Learn more here.

Having an assisted reproduction procedure outside the country

The cost of assisted reproduction procedures in Canada can be very high. People who want to make a baby may decide to travel outside of Canada to have assisted reproduction procedures. For example, people may choose to undergo fertility treatments or in vitro fertilization in another country.

Although there may be financial benefits to getting an assisted reproduction procedure outside of the country, there are also many risks. Depending on the country you are travelling to, they may not have the same type of regulations and standards to protect you.

Finding a donor outside the country

It may be difficult to find someone to donate eggs, sperm, or an embryo for you to make a baby. There may be a wait list to find reproductive materials or embryos from a Canadian clinic.

As a result, some people decide to look outside the country to find a donor.

The laws about buying and using donated reproductive materials or embryos are different in every country. For example: in other countries, you may be able to pay a donor directly for reproductive materials or embryos. You will need to know the laws in the country you are travelling to. To find legal information and lawyers in other countries, see the Solving Legal Problems & Out-of-Province Issues Information Page.

If you are bringing the reproductive materials or embryos back to Canada, you will need to follow Canada’s legal requirements before you can bring them into the country and use them to make a baby. For example, you will need to have the consent of the donor(s) before you can use the reproductive materials or embryos.

Be Aware

No matter where you find a donor, there is the risk that the information given to you about the donor was not accurate. You may be given inaccurate information about family history, mental or physical health, education, occupation, race, religion, or physical traits.

Surrogacy outside the country

Some people who cannot carry a baby during pregnancy will travel outside of Canada to find a surrogate. People may choose to find a surrogate in another country because:

  • it may be easier to find a surrogate because they may be allowed to pay her; and
  • assisted reproduction procedures may be less expensive.

However, there are also many risks when using a surrogate abroad. The assisted reproduction laws in every country are different. For example, depending on the country the child is born in, you may, or may not, be a legal parent to the child. You should be aware of the laws in the country where your surrogate lives.

Using a surrogate in another country can be very complicated. In some countries, a surrogate will be the legal parent of the child. You, or you and your spouse or common-law partner, will need to adopt the child. Some countries still do not allow LGBTQ people to adopt children. And, some countries may not let a couple adopt a child unless they belong to the same religion as the child. If any of these barriers exist, you will need to find another way to bring your baby back to Canada.

Some of the questions you may want to ask are:

  • Is paying the surrogate legal?
  • Do you need a visa or medical visa?
  • Who is a legal parent once the child is born (parentage)?
  • Will you need to adopt the child once he or she is born?
  • Will the country allow you to adopt the child?
  • How can you legally bring the child back to Canada?

This can be quite complicated. You may want to speak with a lawyer in the other country. To find legal information and lawyers in other countries, see the Solving Legal Problems & Out-of-Province Issues Information Page.

For more information, see the following resource.


Citizenship

You can apply for Canadian citizenship for a child if:

  • the child has a parent who is a Canadian citizen; and
  • that parent is genetically connected to the child.

For more information, see the following resources.




If you apply for a Canadian citizenship certificate, you will need:

  • the child’s birth certificate;
  • proof of payment of hospital bills;
  • the agreement with the laboratory and the surrogate mother; and maybe
  • DNA testing to make sure the baby is your genetic child.
Be Aware

If the child is born outside of Canada, that child may not have Canadian citizenship. For the child to be a Canadian citizen, he or she must be a biological child of a living Canadian citizen. In other words, the living parent must have provided sperm or eggs to make the baby. Therefore, for a child born outside the country, being a biological child of a deceased Canadian citizen is not necessarily enough to make the child a Canadian citizen.

For examples of some of the things that you will need to consider if you use a surrogate outside of Canada, see the following resources.



Web Surrogacy
Government of Canada
English

Web Maternité de substitution
Government of Canada
French

Process

Using assisted reproduction to make a baby can be complicated. See the sections below for information about:

  • Finding a clinic to help
  • Finding a surrogate
  • Donating sperm and eggs
  • Becoming a surrogate
  • Making an agreement about assisted reproduction
  • Applying for a Declaration of Parentage
  • Connecting donors, children, and siblings

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: March 2017
Who is this Information Page for?

This Information Page describes the steps you may need to follow to use assisted reproduction to make a baby.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to use assisted reproduction methods.

These situations can be very complicated. You may also wish to speak to a lawyer who specializes in fertility law. For more information, see the Working with a Lawyer Information Page.

Finding a fertility clinic

A fertility clinic may be able to help you with assisted reproduction. To find a fertility clinic near you, see the following resources.

Web Fertility Clinics: Canada
Infertility Network
English

Interactive Fertility Clinics in Canada
fertilityclinics.ca
English
Finding a surrogate

Finding a surrogate can be very difficult. Paying a surrogate or paying someone to arrange a surrogate for you is illegal in Canada. However, there are other ways to find a surrogate. You may be able to:

  1. Find a known surrogate. This may be a friend or family member. Or, you may find someone willing to be your surrogate through someone you know.
  2. Use an agency who will match you with a surrogate for free.
  3. Find a surrogate outside the country. There are many risks involved with using a surrogate outside of Canada. If you are considering doing this, also consider getting the advice of a lawyer before going ahead. See the Working with a Lawyer Information Page. Because the laws in the country you choose will be different than the laws in Canada, you may also wish to consider consulting a fertility lawyer who practices law that country. To find legal help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.
Be Aware

There are some provincial laws that will affect you as well. The laws about surrogacy agreements and parentage (who is a legal parent to a child) are different in every province. If you find a surrogate in another province, the laws in that province may impact your agreement and how you will become a legal parent to the child. To find legal information and help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

For more information about finding a surrogate, see the following resources.

Web Intended Parents interested in Surrogacy Services
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Using donors or surrogates
Government of Canada
English

Web Donneurs et mères porteuses
Government of Canada
French

Web A national review of the law of parentage declarations
Canadian Fertility Consulting
English
This is a private source. Learn more here.

Web Fertility treatments outside of Canada
Government of Canada
English

Donating sperm and eggs

If you are planning on donating your sperm or eggs, there are certain procedures that you should be aware of. Also, you will want to learn about the laws that control:

  • how you can donate your sperm or eggs;
  • the consent requirements you must meet; and
  • whether you will have responsibilities to a child that is born as a result of your donation.

For more information about the relevant laws, see the “Donating your reproductive materials (sperm and eggs): An introduction” section on the Law tab of this Information Page.

Be Aware

If your reproductive materials have not already been screened and tested, you will likely need to have them tested before you can donate them.

For more general information about donating your sperm or eggs, see the following resources.

Web Become a donor
Government of Canada
English

Web Devenir un donneur
Government of Canada
French

Web Egg Donors interested in Surrogacy in Canada Online Services
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Web Egg Donation
ReproMed
English
This is a private source. Learn more here.

Web Becoming a Sperm Donor
ReproMed
English
This is a private source. Learn more here.

Web Sperm Donation in Canada: An Overview
Flowerday Law
English
This is a private source. Learn more here.

The donation process

Sperm donation

Collecting sperm to donate is usually fairly simple. Sperm donation requires that you ejaculate in a sterile cup shortly before the sperm will be used for either insemination or in vitro fertilization.

If you are donating as an unknown donor, you will always donate in a clinic. This process will take some time. This is because there are several tests that must be done before a clinic will help someone make a baby with your sperm. There is more information about this below.

If you are donating to someone you know, you may or may not use a clinic. If you are not using a clinic, the donation may happen in a private setting, such as your home.

Be Aware

Even though you may choose to do insemination without the help of a clinic, there are many complex laws that may still affect you. Because the laws are still new, there is some uncertainty about home insemination. As a result, this Information Page will not discuss home insemination.

For more information about donating sperm in a clinic, see the following resource.

Web Semen Analysis
Regional Fertility Program
English

Egg donation

Donating eggs is more invasive than donating sperm.

There are several tests that must happen before the eggs are collected. You will also need to have hormone treatment to control ovulation. Ovulation is when an ovary releases an egg. These hormones must be injected. During the procedure itself, you will be sedated. A medical practitioner will then go up your vagina and remove the eggs from the ovaries with a needle.

For more information on the procedure, see the following resources.

Web In Vitro Fertilization for Infertility
Government of Alberta
English

Web What is an egg retrieval like?
Olive Fertility Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web In Vitro Fertilization
Regional Fertility Program
English
This is a private source. Learn more here.

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English
This is a private source. Learn more here.

Where to donate?

Be Aware

Even though you may choose to do insemination without the help of a clinic, there are many complex laws that may still affect you. Because the laws are still new, there is some uncertainty about home insemination. As a result, this Information Page will not discuss home insemination.

There are few organizations or clinics in Canada that will allow you to donate your sperm or eggs.

Before you donate your reproductive materials, you should expect to go through several tests and to answer many questions before a clinic will accept your reproductive materials. You may also be required to go to counselling.

Some clinics will require that you meet certain criteria before you can become an unknown donor. The criteria will change depending on which organization you use, and whether you are donating sperm or eggs. For example, some organizations will not accept donated eggs from a woman over a certain age because there is a lower chance that the eggs will successfully make a baby.

There is only one “sperm bank” in Canada: ReproMed. It is the only clinic that will screen and test sperm samples before they are used. This must happen before anyone uses donated sperm to make a baby. After testing the sperm, ReproMed will use it in their clinic or send it to another clinic.

Unfortunately, because there is only one sperm bank in Canada, this may restrict your ability to donate sperm. ReproMed prefers that you live near their facility to undergo testing and to participate in the program for a specific amount of time.

There are only 2 Canadian organizations that will help connect an egg donor to intended parents: Surrogacy in Canada Online, and Canadian Fertility Consultants. For information about these organizations, see the resource list below.

There are also international organizations that can connect you with people looking for an egg donor. However, there are risks to using these organizations because some of them may not be legitimate organizations or they may not properly screen the recipient families.

More information

To find a fertility clinic near you, see the following resource.

Web Fertility Clinics: Canada
Infertility Network
English

Interactive Fertility Clinics in Canada
fertilityclinics.ca
English
Becoming a surrogate

When people cannot carry a child during pregnancy, they will sometimes use a surrogate to carry, and give birth to, their child. There are many procedures that you will need to be aware of if you are considering becoming a surrogate. Also, you will want to learn the laws about surrogacy.

For more information on the laws about becoming a surrogate, see the “Being a surrogate” section on the Law tab of this Information Page.

Finding someone who needs a surrogate

You may decide to become a surrogate because you want to help friends or family members who cannot have a baby on their own. Or you may just want to help someone you don’t know to have a baby. If you do not already know someone who needs a surrogate, you may need help finding intended parents.

There are organizations that will help match you to intended parents for free. For an organization to accept you as a surrogate, you will have to meet certain criteria. For example, some organizations will not accept you if you have not previously given birth to a child. Not all organizations will have the same criteria.

Be Aware

The laws about surrogacy agreements and parentage (who is a legal parent to a child) are different in every province. For information about the law in Alberta, see the “Parentage” sections on the Law tab of this Information Page. If you find intended parent(s) in another province, the laws in that province may affect your agreement and whether you are considered a legal parent to the child. To find legal information and help outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

For more information about finding someone who needs a surrogate, see the following resources.


Web Canadian Fertility Consulting
Canadian Fertility Consulting
English

Web A national review of the law of parentage declarations
Canadian Fertility Consulting
English
Making an agreement about assisted reproduction

Given all of the uncertainties with assisted reproduction, you may wish to consider signing an agreement that governs the process. Such agreements can ensure that everyone understands their expectations, rights, and responsibilities.

There are several types of assisted reproduction agreements that you may consider using. Which one(s) you use will depend on your situation. Your options include:

  • disposition agreements, which discuss what will happen to unused reproductive materials and embryos;
  • donation agreements for reproductive materials and embryos; and
  • surrogacy agreements.

It is always better to put agreements in writing, whether typed or handwritten. This is because, when the agreement is not in writing, it can be impossible to prove what exactly was agreed to.

Before you start: Learn the law

If you are planning to write an agreement on your own, you will want to learn about the important issues that can arise. For example:

  • there are things you must include in any agreement;
  • there are things you cannot ever have in any agreement to ensure that it will not be “set aside” by a court in the future; and
  • there are many specific laws about what you are allowed to do in assisted reproduction.

You cannot agree to something that is against the law, even if everyone involved agrees.

General things to include in any agreement

For any agreement to be legally sound, there are several things that are required. They include:

  • consent;
  • capacity;
  • complete disclosure; and
  • following the law that governs the issue.

There are also several things that must never be present. They include:

  • undue influence;
  • duress (such as threats); and
  • terms that are against the law or against “public policy.”

For more information about all of these topics, as well as information about things that are generally a good idea to include in agreement, see the following Information Pages. Although these Information Pages deal with domestic agreements and coming to an agreement when separating, the general information about contracts also applies to agreements about using assisted reproduction.

Getting independent legal advice

It is always a good idea for everyone involved to get independent legal advice. This means that each party speaks to their own lawyer. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities.

Getting independent legal advice can be helpful because a lawyer will catch any topics or issues that you may have missed or hadn’t thought about. Lawyers can also clarify any unclear terms or conditions in your agreement. Also, if any of the parties did not get independent legal advice before signing the agreement, a court may decide that the parties did not truly understand the contract when they signed it, and may “set aside” the agreement as a result.

Be Aware

Some clinics will require that donors get independent legal advice before they will use the sperm, eggs, or embryos.

For more information about finding a lawyer and independent legal advice, see the Working with a Lawyer Information Page.

Disposition agreements (for reproductive materials and/or embryos)

Sometimes a couple, or 2 people who know each other, will have their reproductive materials removed to try artificial insemination or to make embryos to use for in vitro fertilization.

A “disposition agreement” may be between:

  • spouses or common-law partners; or
  • the person or people who are using assisted reproduction and a clinic who is storing the reproductive materials or embryos.

This agreement usually includes decisions about what will happen if:

  • the intended parents disagree about how to use the reproductive materials or embryos;
  • one of the intended parents dies;
  • the intended parents end their relationship; and
  • there are any extra or unused reproductive materials or embryos.
Be Aware

It is a good idea to have an agreement in place, but it is important to remember that the consent requirements discussed on the Law tab of this Information Page may override the agreement. This means that you cannot agree that one of the parties does not need to give their consent to use the reproductive materials or embryos.

For more information on disposition agreements, see the following resource.

Web Embryo Disposition Agreements
Lisa Feldstein Law Office
English
This is a private source. Learn more here.

Web Legal Considerations before Freezing Embryos
Cancer Knowledge Network
English



Web How Do I Make A Decision About My Remaining Embryos? What Are My Options?
RESOLVE: The National Infertility Association
English
This resource is from outside Alberta. Learn more here.

PDF Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer
American Academy of Matrimonial Lawyers
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Web Sperm is Property: So Says the Court
Impact Ethics
English
This resource can be a challenge to read. Learn more here.

This is a complicated topic. You will likely want to consult a lawyer. For more information about finding a lawyer and getting independent legal advice, see the Working with a Lawyer Information Page.

Donation agreements (also called “donor agreements”)

A donation agreement is written contract signed by both:

  • the person or people who donate eggs, sperm, or embryos; and
  • the person or people who receive the donated eggs, sperm, or embryos (the “recipients”).

This agreement describes the rights and responsibilities of both the recipients and the donors.

Be Aware

Fertility clinics usually require that you have a donation agreement in place with donors before they will begin any procedure.

Some of the things that donation agreements may address are:

  • parentage (who will be a legal parent of the child);
  • future parenting rights and obligations;
  • future involvement of donors (and genetic siblings) in the child’s life, if any; and
  • confidentiality.

All of these issues are described in detail on the Law tab of this Information Page.

Be Aware

When you enter a donation agreement, you must follow the laws that impact sperm, egg, and embryo donation. You cannot agree to something that is against the law, even if everyone involved agrees.

For more information on donor agreements, see the following resources.

Web Egg Donor Law in Canada
Fertility Law Canada
English

Web Sperm Donation Law in Canada
Fertility Law Canada
English


This is a complicated topic. You will likely want to consult a lawyer. For more information about finding a lawyer and getting independent legal advice, see the Working with a Lawyer Information Page.

Surrogacy agreements

A surrogacy agreement is written contract between:

  • a person or people who are using a surrogate; and
  • a surrogate.

If the surrogate is married or in a marriage-like relationship, her partner should also be included in the agreement. Surrogates and intended parents usually enter into surrogacy agreements before the surrogate becomes pregnant.

This agreement will discuss the future rights and responsibilities of everyone who signed it. It should include expectations for before, during, and after the pregnancy. This includes the expectation that, after the birth, the surrogate will give the child to the intended parent(s).

Be Aware

Many fertility clinics will require that you have an agreement in place before they will begin any procedures or treatments.

Some of the issues that may be included in a surrogacy agreement are:

  • expectations for the surrogate’s behaviour during pregnancy;
  • how the expenses related to the pregnancy will be paid;
  • insurance for the surrogate;
  • what everyone’s expectations are if the fetus has birth defects (terminate or continue the pregnancy);
  • what will happen if one of the parties dies;
  • what will happen once the baby is born. This may include who is a legal parent of the child (parentage), and if there will be any involvement with the surrogate; and
  • what will happen if the agreement is not followed (sometimes the surrogate or the intended parents agree to pay money if they do not follow the agreement).

Sometimes you will need to take extra steps to make sure that something in your agreement happens. For example, even if you address parentage in your agreement, you will still need to apply to a court for a Declaration of Parentage (see the “Parentage: Who is a parent?” section on the Law tab of this Information Page).

Be Aware

When you enter an agreement about assisted reproduction, you must follow the laws that impact sperm, egg, and embryo donation. You cannot agree to something that is against the law, even if everyone involved agrees. In Canada, this means that surrogacy agreements cannot force the surrogate to give up the child once she has had the baby.

If the intended parent(s) are hiring a lawyer to make an agreement, it may be a good idea for the surrogate, and her partner if she has one, to get independent legal advice before they sign the agreement. The surrogate should do this to make sure that the agreement is fair, and that she understands her rights and responsibilities. Having independent legal advice may also prove that the surrogate understood, and was not forced to sign the agreement. This lawyer will not be hired by the intended parent(s). But the intended parent(s) may pay the surrogate back after she has paid the expense.

Be Aware

Some fertility clinics will require that the surrogate (and her partner, if she has one) get independent legal advice before they will begin a procedure.

For more information about finding a lawyer and getting independent legal advice, see the Working with a Lawyer Information Page.

For more information on surrogacy agreements, see the following resources.

Web Surrogacy in Canada Online: FAQ
Surrogacy in Canada Online
English
This is a private source. Learn more here.


Web A national review of the law of parentage declarations
Canadian Fertility Consulting
English
This is a private source. Learn more here.
Be Aware

The provinces make the laws about surrogacy agreements, so these laws are different in other provinces. If you are using a surrogate from another province, you should also be aware of the laws in that province. To find legal information in other provinces, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Applying for a Declaration of Parentage
Queen's Bench

You can only apply for a Declaration of Parentage in the Court of Queen’s Bench.

When a child has been born from assisted reproduction, getting a Declaration of Parentage will be done by “consent.” This means that the parties are not arguing about the issue—the purpose is to make sure the intended parents become the legal parents.

Be Aware

Sometimes there can be disagreement. For example, if a surrogate changes her mind and wants to keep the baby. In such a case, the intended parents would not apply for a Declaration of Parentage. Instead, they would apply for guardianship. For information about how to do that, see the Becoming the Guardian of a Child Information Page.

There are 2 ways to get a Declaration of Parentage by consent:

  • through a desk application; or
  • through a consent order.

Both of these methods require that you fill out and file court paperwork. This is true even though the parties all agree.

Be Aware

Depending on where you live in Alberta, you may not have both options. For information about your options in your judicial centre, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Paying fees

When you file documents at the Court, there is often a filing fee that must be paid. There can also be fees for additional applications related to your case. For a current list of fees and options if you can’t afford the fees, see the following resources.

Web Court fees
Government of Alberta
English

Web Waiving a filing fee
Government of Alberta
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English

Intake appointment

In some judicial centres, before filing your Claim you must first have an intake appointment at Resolution and Court Administration Services (RCAS). Contact RCAS for more information.

Web Resolution and Court Administration Services
Government of Alberta
English

Completing the paperwork

To ask a judge for a Declaration of Parentage, you will need to fill out 2 forms:

  • A “Claim” form. This is a general form that sets out some basic information and will include the date and time of the hearing.
  • A “Statement - Parentage” form. This form tells the judge what you are asking for.

To file a Claim, use the following form. For instructions on how to complete this form, click on the blue box called “Instruction” at the top of the form.

PDF Claim - Family Law Act (Form FL-10 / CTS3459)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

When you file a Claim, you must also file an “Affidavit” to ask for a Declaration of Parentage. Use the following form.

You must also include the surrogate’s signed consent form—see just below for information about that.

Be Aware

In this paperwork, all of the parties involved must be listed as either the Applicant or the Respondent. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

What needs to be included in the surrogate’s consent

To ask a judge for a Declaration of Parentage, you must have the surrogate’s consent. Her consent must state that she:

  • is the surrogate;
  • gave birth to the baby on the specific day;
  • understands that she is currently the parent of the child;
  • understands that an application is being made to declare that the genetic parent is a parent to the child;
  • understands that if the court grants the declaration, the surrogate will no longer be a parent to the child;
  • understands that the court cannot grant the declaration without her consent;
  • understands that if she consents and the declaration is granted, the genetic parent will be considered to be the child’s parent from birth;
  • understands who the other parent will be if the court grants the declaration (if such a person exists);
  • freely and voluntarily consents to the application;
  • understands that by her consent she gives up any obligations, powers, responsibilities, or entitlements with respect to the child.

In order for the surrogate’s consent to meet the legal requirements, the consent must be:

  • in writing;
  • dated;
  • signed by the surrogate; and
  • witnessed by a person other than an intended parent.

To read the regulation that sets out these requirements, see the following resource.

Web Family Law Act General Regulation
Government of Alberta
English

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

“Serving” the paperwork

Usually, once all of your paperwork is in order and properly signed and filed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. Because all of the parties consent to this application, you may not need to follow the normal rules of service. For information on what to do in your case, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

“Proving” that the paperwork was served

Usually, the person who served the paperwork must also swear an Affidavit of Service to prove that they served the other party. This form must be completed by the person who completed the service, and filed before the court date.

Because all of the parties consent to this application, you may not need to follow the normal rules about proving service. For information on what to do in your case, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

If you do need to prove service, you can use the following form. You would also need to bring a copy of this form with you to court.

Completing the “desk application” or “consent order”

There are 2 ways to get a Declaration of Parentage by consent:

  • through a desk application; or
  • through a consent order.

These options are described just below.

Depending on where you are in the province, you may not have a choice about which process to use. Be sure to ask Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

If you do have a choice, issues that might affect that decision can include:

  • cost;
  • timing (how quickly you want it done); and
  • your preference about appearing in a courtroom.

Desk application

In desk application, the parties do not have to appear in front of a judge. Instead, the paperwork is simply sent up to a judge’s office and is dealt with at the judge’s desk. You may also have to complete a draft Order. This process can take several weeks. For information about the steps you need to take, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

The judge will decide whether or not to grant the order. A benefit to proceeding by desk application is that you do not have to “go to court.” A drawback, however, is that if anything is unclear or something is missing, your order will not be granted and you will have resubmit the corrected paperwork. This can add time.

Consent order

Once you have filed your Claim and Statement, you will have to complete a draft Order. Then, take your draft consent order to “chambers” to have a judge grant the order. This does not have to be done on any particular day, and you do not have to wait until a scheduled court date, if you had one.

A benefit to proceeding by consent order is that if anything is unclear or if something is missing, all the parties are there and the matter can be resolved right then and there. In a desk application, on the other hand, your application might just be refused and you would have to re-submit your documents with the information that had been missing. This can take much longer. However, for those who do not like going into courtrooms, the desk order option described above may be better.

Being in chambers

Chambers is where Queen’s Bench hearings take place. These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people. Before the judge starts to hear the cases on the list, they will ask if there are any preliminary matters. At this time, people who want a consent order can ask for one.

For most people, going to court will be a brand new experience. It may also come as a bit of surprise. Being in court is not really as it appears on most television shows, and you will likely not be familiar with the rules of court (yes, there are rules!). Also, most people find that dealing with family issues in court is stressful.

For these reasons, it is a good idea to prepare for the court experience. The following resources provide some very useful information on preparing for court in Queen’s Bench.


Web Courtroom etiquette
Government of Alberta
English

In some courthouses, you may have the option of speaking with “duty counsel.” Duty counsel are volunteer lawyers who will discuss your legal issue with you for free. This can include what the judge may think of your requests and the “merits of your claim.” There are no income restrictions to speak with duty counsel, but the service is limited. They are only at certain courthouses on certain days. Also, there may be many people waiting to speak with them. If you need to speak to duty counsel, make sure you get to the courthouse early. Check with your judicial centre to verify the times and days duty counsel will be available.

For information about what matters duty counsel can help with, and which judicial centres have duty counsel available, see the following resource.

Web Duty Counsel - Legal Assistance at Court
Legal Aid Alberta
English

After chambers is over

In most cases, when your court hearing is over, the Order granted by the judge will be typed up by the court clerk. It may be ready shortly after the hearing. If it is not, it will be mailed to you. It will also be mailed to any other parties. If one of the parties is represented by a lawyer, the judge may ask that lawyer to type it up.

Once you have the consent order, make sure that it is filed with the Court and a copy is given to all parties. To do this, see the court clerks.

Connecting donors, children, and siblings

Children who are conceived with the help of a donor are often curious about the donor or any donor-conceived siblings they may have. Or, donors may originally choose to remain anonymous, and then decide that they want to connect at a later date.

There are voluntary registries that connect donor siblings, donor-conceived children with their donors, and parents with donors.

For more information, see the following resources.

Web Find information about a donor
Government of Canada
English


Web The Donor Sibling Registry
The Donor Sibling Registry
English

Web ReproMed Sibling Registry
ReproMed
English


Web Talking to your donor-conceived child
Government of Canada
English

Web Parler à votre enfant conçu grâce à un don
Government of Canada
French


Web Telling Your Child
Donor Conception Network
English

Provincial Court

Queen's Bench

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