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Answers to Common LGBTQ Legal Questions about Surrogate Childbirth

How can two men become the legal parents of a child that a surrogate carried for them?

The intended parents do not complete the Statement of Live Birth. They apply for a declaration of parentage from the Superior Court of Justice naming them both as parents of the child, and indicating that there is no other parent.

Can a surrogate keep the baby?

It is possible. Under Ontario law, the person who gives birth to a child, is that child’s mother. There is no basis for thinking that anyone could enforce a surrogacy agreement by taking the baby from a surrogate who changed her mind about the arrangement.

In such circumstances, the intended parent who contributed genetic material could pursue custody and access to the child, might be recognized as a legal parent, and would then be liable for child support.

In a surrogacy situation, who decides whether to terminate a pregnancy?

The person carrying the baby is the one who decides whether or not to terminate. Intended parents, even if one of them has contributed genetic material to the conception, cannot stop a surrogate from terminating a pregnancy. Nor can they compel the surrogate to terminate, for example if they learn that the child will have a disability.

In such circumstances, the intended parent who contributed genetic material could be recognized as a legal parent and would then be liable for child support.

How can I ensure that a child born through an international surrogacy situation can cross the border into Canada?

Whether or not you are genetically connected to the child, this legal situation is complex. Couples or individuals considering this option should proceed with caution and consult with a lawyer.