Disclaimer: This article is an original work by Canbaby Fertility Consultant LTD, a Canadian surrogacy consulting company. Reproduction or redistribution without permission is strictly prohibited.
Your 2025 Guide to Protecting Your Rights and Your Baby’s Future
Surrogacy is a life-changing option for many Canadian families, especially those facing infertility, same-sex couples, or single parents seeking to have a biological child. Due to Canada’s ban on commercial surrogacy, a growing number of Canadians turn to international surrogacy in countries such as the United States, Georgia, Colombia, Mexico, and others where paid surrogacy is legal and medically regulated.
However, entering a surrogacy arrangement abroad means crossing not just borders—but also legal systems. And at the heart of any safe, transparent, and enforceable arrangement is a surrogacy contract.
This article outlines everything Canadian intended parents must know about surrogacy contracts abroad, including legal enforceability, ethical concerns, immigration implications, and how to protect yourself and your child throughout the process.
Why Surrogacy Contracts Matter—Especially Abroad
A surrogacy contract is a written legal agreement between the intended parent(s) and the surrogate (and sometimes the egg/sperm donors), outlining each party’s roles, responsibilities, expectations, and rights throughout the surrogacy journey.
In domestic Canadian altruistic surrogacy, contracts are recommended but not legally enforceable. But when pursuing surrogacy overseas, these agreements become essential for:
- Establishing legal parentage
- Defining medical decision-making authority
- Ensuring custody transfer after birth
- Avoiding future legal disputes
- Complying with foreign and Canadian immigration rules
For Canadian citizens, surrogacy contracts signed abroad must also align with Canadian law to avoid complications in bringing the child back home or having your parentage recognized.
1. Is the Contract Legally Binding in the Country Where It’s Signed?
Before anything else, ask: Is the surrogacy contract enforceable in the country where the birth will take place?
Each country has its own laws on the legality of surrogacy contracts:
- United States (some states): Contracts are enforceable and reviewed by courts before or after birth
- Georgia & Ukraine: Surrogacy is legal for heterosexual married couples; contracts are binding
- Colombia & Mexico (selected states): Surrogacy is permitted but laws vary by region; contracts may or may not be recognized
- India, Thailand: Commercial surrogacy is now restricted or banned for foreigners
📌 Tip: Only proceed in jurisdictions where legal parentage will be granted to the intended parents, either through pre-birth orders or post-birth judgments.
2. Will Canadian Law Recognize the Contract?
Canadian federal law does not enforce commercial surrogacy contracts, but it will consider the legal parentage ruling from the foreign country when processing citizenship or permanent residence for the child.
However, each Canadian province has its own family law for determining who the legal parents are.
- In British Columbia and Ontario, courts often accept the foreign parentage judgment, especially if both intended parents are named on the birth certificate and a surrogacy contract exists.
- In Alberta or Quebec, additional steps like declaration of parentage may be needed.
📌 Key Point: A contract signed abroad does not guarantee that Canada will recognize you as the legal parent without proper supporting documentation.
3. Key Clauses That Must Be Included in Your Surrogacy Contract
To ensure your rights—and the child’s rights—are protected, the surrogacy contract should include:
✔ Identification of all parties
- Intended parents’ full legal names, marital status, nationality
- Surrogate’s name, age, marital status, residence
- Agency or facilitator (if applicable)
✔ Medical and reproductive terms
- Number of embryo transfers
- Use of donor gametes (if any)
- Prenatal screening agreement
- Delivery plan and hospital selection
✔ Financial terms (if legal in the jurisdiction)
- Compensation for the surrogate (if allowed)
- Reimbursement of medical costs, legal fees, travel, insurance, maternity clothing, etc.
- Timing of payments and handling of escrow accounts
✔ Parental rights and custody
- Acknowledgement that intended parents will have full parental rights at birth
- Surrogate’s agreement to relinquish all parental claims
- Handling of potential legal disputes
✔ Decision-making in pregnancy
- Medical autonomy of the surrogate
- Abortion or selective reduction policies
- Consent for emergency procedures
✔ Birth certificate and legal steps
- Who will be listed on the baby’s birth certificate
- Local court rulings (pre-birth or post-birth orders)
- Timeline and responsibility for parentage declaration
✔ Exit strategy and child’s return to Canada
- Immigration coordination
- Travel document and passport support
- Any role of the surrogate post-birth (contact agreements)
📌 Tip: The contract should be notarized and translated into English or French for Canadian immigration and legal recognition purposes.
4. Always Use Independent Legal Counsel
For Canadian parents, it is critical to have the contract reviewed by:
- A local lawyer in the birth country, who ensures compliance with local law
- An immigration lawyer in Canada, who ensures the process won’t delay the baby’s return
- A Canadian family lawyer, who helps align the agreement with Canadian provincial laws
📌 Important: The surrogate should also have independent legal advice. This ensures the contract is ethical, transparent, and fair—making it more likely to be honored by courts in both countries.
5. Risks of Not Having a Valid Surrogacy Contract
Skipping or using a weak contract in international surrogacy can lead to:
- Legal limbo for the child (no recognized parents)
- Citizenship delays or rejections
- Court disputes if the surrogate changes her mind
- Denial of exit visas by the foreign government
- Custody challenges upon arrival in Canada
You may even face criminal penalties if your contract violates the surrogacy laws of the birth country.
6. Ethical Considerations and the Role of Agencies
Many foreign clinics or agencies offer pre-drafted surrogacy contracts, but these may be biased toward protecting the clinic or agency’s interests, not yours.
Ensure that:
- The surrogate is not coerced
- Compensation (if allowed) is reasonable and transparent
- The contract includes counseling and informed consent
- The process complies with Canadian values and ethics, particularly when dealing with vulnerable women abroad
📌 Caution: Canadian parents must avoid entering exploitative or black-market arrangements. Violating Canada’s Assisted Human Reproduction Act (AHRA) could result in criminal charges, even if the surrogacy occurs outside of Canada.
7. Post-Birth Procedures for Canadians
Once the baby is born:
- Submit the foreign birth certificate and surrogacy contract to Canadian immigration
- If applicable, conduct DNA testing
- Apply for citizenship certificate or permanent residence
- Apply for a Canadian passport or temporary travel document
- Once in Canada, follow provincial steps for confirming or registering parentage
📌 Tip: Having a clear, comprehensive surrogacy contract in place makes this process significantly smoother.
Final Thoughts: Plan for Legal Peace of Mind
International surrogacy offers Canadian families a path to parenthood—but also a maze of cross-border legal considerations. A well-drafted, enforceable surrogacy contract is your primary legal safeguard when embarking on this journey abroad.
By working with experienced legal professionals in both jurisdictions and ensuring your contract is clear, fair, and ethical, you dramatically increase your chances of a successful and stress-free surrogacy experience.
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