Surrogacy in Canada: Lawyers’ Experiences and Practices

Abstract

Canadian lawmakers and scholars have long expressed concern about surrogacy arrangements. They have worried that surrogates will be ill-informed of their legal rights. They have argued that surrogacy contracts will favour the intended parents’ interests. They have also feared that surrogates will change their minds and will wish to keep the children they carry. This article presents and discusses results from qualitative interviews with twenty-six Canadian lawyers who advise and represent surrogates and intended parents. Lawyers offer new insight into the legal advice they provide to surrogates, the content of surrogacy contracts, and the disputes they have seen arise between surrogates and intended parents. Their narratives show that some of the concerns that lawmakers and scholars have had about surrogacy arrangements are warranted; however, they also provide a more nuanced and complicated account of what lawyers are doing and seeing in their practices. These interviews suggest that, while surrogates may be vulnerable, they may also be afforded more protection, and may exercise greater agency and power, than has been traditionally assumed.