Michelle Flowerday on CTV’s The Social: The State of Surrogacy in Canada

Surrogacy has become far more visible in Canada in recent years, but it remains widely misunderstood.

To help set the record straight, Flowerday Fertility Law founder Michelle Flowerday joined the hosts of CTV’s The Social for a segment on the state of surrogacy in Canada. Michelle walked viewers through what surrogacy actually looks like here, including:

• who can become a surrogate
• what Canadian law does, and does not, allow when it comes to compensation
• what goes into a surrogacy agreement
• how legal parentage is established after the baby is born

Watch the full segment below, then read on for a closer look at everything Michelle covered.

What Counts as Surrogacy in Canada?

Michelle began by explaining the two main types of surrogacy.

In gestational surrogacy, the surrogate, often called a gestational carrier, has no genetic connection to the baby she carries. The embryo is created using genetic material from the intended parents, donors, or a combination of both, and is then transferred to the surrogate.

In traditional surrogacy, the surrogate uses her own egg, meaning she is genetically related to the child.

Gestational surrogacy is by far the more common arrangement in Canada today and is generally the more legally straightforward path.

If this terminology is new to you, our fertility terms glossary explains these and other common fertility terms in clear, accessible language.

Can You Pay a Surrogate in Canada?

This is often the first question people ask, and Michelle addressed it directly: no, you cannot pay someone to be your surrogate in Canada.

Surrogacy is governed in part by federal legislation called the Assisted Human Reproduction Act, S.C. 2004, c. 2 (“AHRA”). The AHRA prohibits paying a surrogate for carrying a pregnancy, regardless of the province or territory in which the surrogacy takes place.

Surrogacy in Canada must therefore be altruistic. However, intended parents may reimburse a surrogate for eligible out-of-pocket expenses incurred in relation to the surrogacy, provided the reimbursements comply with federal legislation and regulations.

These expenses may include costs associated with travel, maternity clothing, medical care, counselling, childcare, insurance, meals, and other pregnancy-related needs. Certain reimbursements require receipts, declarations, or written recommendations from an authorized healthcare professional. A surrogate’s lost employment income may also be reimbursable in limited circumstances when the required medical certification and supporting documentation are provided.

Although a surrogate cannot profit from carrying a pregnancy, the costs associated with supporting her throughout the process can add up quickly. This is one reason Michelle emphasized that surrogacy is a significant financial undertaking for intended parents, well beyond the legal fees.

Support for Intended Parents & Surrogates

Because the financial costs of fertility treatment and family building are significant, Michelle also pointed viewers toward resources that may help.

Michelle serves on the Board of Directors of the Fertility Friends Foundation, a registered Canadian charity that provides grants to help people facing fertility-related expenses. During its spring grant cycle, the Foundation raised $50,000 and awarded ten grants of $5,000 to people pursuing their paths to parenthood.

If you are considering building your family through surrogacy or donation, the Foundation is worth exploring, along with employer fertility benefits and provincial fertility funding programs, where available.

What Is Included in a Surrogacy Agreement?

Before beginning the medical process, the intended parents and surrogate should each receive independent legal advice from separate lawyers.

This is not simply a formality. Fertility clinics generally require confirmation that a properly negotiated and signed surrogacy agreement is in place, and that everyone has received independent legal advice, before proceeding with an embryo transfer.

Michelle and her team prepare and review surrogacy agreements for intended parents and surrogates across Canada. A comprehensive agreement may be 50 pages or longer because it addresses far more than the basic intention to pursue surrogacy.

Among other things, a surrogacy agreement may address:

• diet, smoking, alcohol, medication, and other lifestyle considerations
• medical appointments, prenatal testing, and the sharing of medical information
• communication among the intended parents, surrogate, clinic, and healthcare providers
• reimbursement of eligible surrogacy-related expenses
• expectations surrounding the pregnancy and delivery
• decision-making in the event of medical complications
• the parties’ intentions regarding legal parentage
• what happens if circumstances change or a disagreement arises

Michelle also described the step-by-step process that agreements commonly use to resolve disagreements. First, the parties speak directly with one another. If they cannot resolve the issue, their lawyers become involved and work toward a practical solution. If the disagreement continues, the agreement may provide for mediation or arbitration. Court is generally treated as a last resort for the rare disputes that cannot be resolved another way.

For a deeper look at assembling the right professional team and putting a strong agreement in place, read our guides to building your family-building team the right way and becoming a surrogate in Canada.

What Happens After the Baby Is Born?

Legal parentage following a surrogacy is governed by provincial and territorial law, so the process depends on where the baby is born and the circumstances of the arrangement.

In Ontario, many intended parents can establish parentage through a statutory, administrative process after the surrogate provides written consent no earlier than seven days following the birth. In other circumstances, a court application for a declaration of parentage may be required.

In other Canadian provinces and territories, the necessary steps and documents differ. This is why it is important to obtain legal advice early and understand the applicable post-birth requirements before beginning the surrogacy journey.

In most cases, the intended parents are present for the birth and begin caring for their baby immediately while the remaining legal and birth registration documents are completed. Once the applicable parentage process is finalized, the intended parents are identified as the child’s legal parents and named on the birth certificate.

If you would like to understand this process more fully, our legal parentage page explains what happens after the baby is born.

About Plaid Fertility Law

Surrogacy agreements are detailed, document-heavy, and time-sensitive. That is one reason Michelle created Plaid Fertility Law, a secure online platform used exclusively by Flowerday Fertility Law clients to manage surrogacy, ova donation, sperm donation, and embryo donation agreements.

Plaid helps clients complete the information needed for their agreement, collaborate throughout the process, monitor progress, and sign electronically through DocuSign.

Technology helps make the process more organized and efficient, but it does not replace the lawyer. Michelle personally reviews every agreement, provides legal advice, and represents her client throughout the process. Plaid is designed to make the paperwork feel less overwhelming while preserving the personal attention and legal guidance that each family-building journey requires.

Learn more about Plaid Fertility Law.

About Flowerday Fertility Law

Founded by Michelle in 2010, Flowerday Fertility Law is a Toronto-based law firm that supports intended parents, surrogates, and donors across Canada and internationally through every legal stage of assisted family building.

The firm’s services include surrogacy agreements; ova, sperm, and embryo donation agreements; 2SLGBTQIA+ family-building law; hospital letters; and legal parentage matters.

Flowerday Fertility Law also works closely with fertility clinics, surrogacy and donor agencies, fertility counsellors, and other professionals throughout Canada.

The team includes law clerks Katie Fitzsimmons and Alisha O’Brien, both of whom bring personal surrogacy experience to their work with clients. You can read Katie’s surrogacy story and Alisha’s surrogacy story on our blog.

About Fertility Lawyer, Michelle Flowerday

Michelle Flowerday, LL.B., is the founder and CEO of Flowerday Fertility Law and Plaid Fertility Law.

She holds a B.A. (Honours) in Psychology from McGill University and an LL.B. from Osgoode Hall Law School. Michelle has practised law in Ontario since 2002, including as a partner at Dickson MacGregor Appell LLP and as an associate at McCarthy Tétrault LLP before founding her own firm.

For more than 16 years, Michelle has focused her practice on third-party reproduction law, including surrogacy agreements, donor agreements, co-parenting arrangements, and the legal processes required to establish parentage.

Michelle is a member of the Canadian Fertility and Andrology Society, serves on fertility clinic ethics committees, and sits on the Board of Directors of the Fertility Friends Foundation. She is a familiar and trusted voice on Canadian fertility and surrogacy law.

Learn more about Michelle.

If you are considering surrogacy or donation, hoping to grow your family, or thinking about becoming a surrogate, Michelle and the Flowerday Fertility Law team can help you understand what the legal process involves and what steps to take next.

Book a free consultation to get started.