Surrogacy and the Law in Ontario: A Guide for Intended Parents

More Ontarians are building their families through surrogacy than ever before. But surrogacy law in Ontario is a patchwork of provincial family law rules, federal legislation, and evolving court practice — and getting it wrong can mean the child you've planned and waited for doesn't legally belong to you at birth. This guide explains the legal framework so you can navigate the process with confidence.

The Governing Laws

Surrogacy in Ontario involves at least two layers of law:

• Federal: The Assisted Human Reproduction Act (AHRA) governs what is permitted in surrogacy arrangements across Canada. It prohibits commercial surrogacy — a surrogate cannot be paid a fee beyond reimbursement of reasonable out-of-pocket expenses directly related to the pregnancy. Paying a surrogate a fee for carrying a child is a criminal offence. Only altruistic surrogacy is legal.
• Provincial: Ontario's Children's Law Reform Act (CLRA) governs how legal parentage is established for children born through assisted reproduction, including surrogacy. It was significantly updated to recognize pre-conception agreements as the primary mechanism for establishing intended-parent status.

The Central Concept: Pre-Conception Agreement

Ontario's CLRA establishes that the intended parents named in a written pre-conception agreement (signed by all parties before conception) are the child's legal parents from birth — not the surrogate.

This is a major shift from older rules. Under the updated framework:

• The surrogate (and her spouse or partner, if any) can explicitly agree in the pre-conception agreement that they are not legal parents.
• The intended parents — up to four people, under Ontario's modernized rules — are recognized as legal parents.
• The agreement must be in writing and signed before conception occurs.

If there is no valid pre-conception agreement, the default rules apply: the birth mother (surrogate) is a legal parent, and the intended parent who did not give birth is not automatically recognized. In that case, a court process is required to establish parentage.

What a pre-conception agreement should cover

• Identification of the surrogate and intended parents
• The surrogate's agreement that she will not be a legal parent
• The intended parents' acknowledgment of their parental status
• Reimbursable expenses (in compliance with federal law)
• Decisions around prenatal care, delivery, and post-birth contact
• What happens in the event of pregnancy complications or pregnancy loss
• What happens if the intended parents' relationship ends during the pregnancy

A poorly drafted agreement — or no agreement at all — creates serious legal risk. Both parties need independent legal counsel.

Getting a Parentage Order: When and Why

Even with a valid pre-conception agreement, many Ontario families choose to obtain a court-issued parentage order after the child is born. Why?

1. Certainty and portability: A court order is recognized across jurisdictions in a way that a contract is not. This matters for travel, citizenship, schooling, and medical decisions.
2. Birth registration: An order allows the intended parents' names to appear on the birth registration from the outset.
3. International surrogacy: If the surrogacy occurred in another country, Ontario courts may need to make an order recognizing the intended parents' status under Ontario law — which may differ from what the foreign country recognized.

For domestic surrogacy with a valid pre-conception agreement, a parentage declaration can often be obtained on consent before or shortly after birth, with the surrogate's participation.

International Surrogacy: Added Complexity

Many Ontarians use surrogates in countries where commercial surrogacy is legal (the United States, some other jurisdictions). This adds layers:

• Immigration: The child must enter Canada as a Canadian citizen (if eligible) or obtain a visa. This requires Immigration, Refugees and Citizenship Canada (IRCC) to be satisfied about the child's citizenship status — and that depends on whether the child's legal parents are Canadian citizens. Establishing parentage correctly affects citizenship.
• Ontario parentage: Even if another country's court issued a parentage order, Ontario courts may need to make their own order confirming the intended parents' status under the CLRA.
• The AHRA still applies: Canadian intended parents who paid a surrogate in a country where commercial surrogacy is legal may technically have violated the federal prohibition. The law in this area is evolving. Consult a lawyer before proceeding.

Finding a Surrogate

Ontario has no formal registry. Most Ontarians connect with potential surrogates through:

• Surrogacy-focused non-profit organizations and support communities
• Referrals from fertility clinics
• Personal networks

Once a match is found, both parties need independent legal advice before any agreement is signed and before medical procedures begin. A surrogate should not sign the pre-conception agreement without their own independent lawyer reviewing it.

Costs: What Can and Cannot Be Reimbursed

Under the AHRA (as implemented through regulations), a surrogate can be reimbursed for expenses that are directly attributable to the surrogacy, such as:

• Travel, accommodation, and meals for medical appointments
• Maternity clothing
• Lost work income (with documentation)
• Medical expenses not covered by provincial health insurance
• Counselling and legal fees related to the surrogacy agreement

As of writing, the list of reimbursable categories and the documentation requirements are set out in federal regulations — verify the current rules with a surrogacy lawyer before making any payments. Do not pay a base fee or compensation beyond reimbursable expenses.

Frequently asked questions