The New Shape of Surrogacy: Banaszek Family Law explores emerging issues in fertility law

Surrogacy is a regulated and altruistic (reimbursement for expenses is only allowed) alternative for those experiencing difficulty or requiring assistance creating a family of their own. Surrogacy is an arrangement where a woman agrees to carry a baby for others, often being the only option for an infertile or same-sex couple to have their own genetically-related child.

Canadians experiencing infertility, same-sex couples and single parents are increasingly turning to assisted human reproduction (“AHR”) options, like surrogacy. This week, Adrianna Banaszek, founder and family lawyer at Banaszek Family Law, explores emerging issues relating to surrogacy in Canada:

Legislation governing assisted human reproduction in Canada

The Assisted Human Reproduction Act (“AHRA”) is Canada’s federal legislation that governs assisted reproduction procedures like surrogacy and human cloning, to name a few. There are several regulations associated with the AHRA. It is designed to protect and promote the health, safety, dignity, and rights of Canadians who use, or are born of, AHR technology.

Health Canada is responsible for developing policy and regulations under the AHRA, and for administering and enforcing the legislation and its’ regulations. The Government of Canada (Health Canada) outlines that the AHRA achieves this purpose by “setting out prohibited activities related to assisted human reproduction that may pose significant human health and safety risks to Canadians or that are deemed to be ethically unacceptable or incompatible with Canadian values.”

Can surrogates obtain payment? New changes coming JUNE 2020.

The current laws in Canada prohibit paying a surrogate mother for the act of carrying the child. NEW regulations from Health Canada will come into effect on June 9, 2020 in the form of the Reimbursement Related to Assisted Human Reproduction Regulations (the "Regulations”) to clarify what type of “payment” or reimbursement of expenses is legal in a surrogacy arrangement.

The inclusion of a comprehensive list of reimbursable expenses is a major development as the current legislation does not specify which particular expenses may be reimbursed. By clearly defining which expenses are reimbursable to a surrogate, the Regulations will reduce fears of being criminally sanctioned for offering an illegal type of payment to a surrogate or for the surrogate accepting same. Consequently, the ability to broadly interpret what constitutes a “reasonable” expense previously allowed parties more flexibility and autonomy in making fertility arrangements.

Reimbursable expenses relating to surrogacy

The following expenditures incurred by a surrogate mother in relation to the surrogacy MAY be reimbursed under subsection 12(1) of the Act: (as outlined in section 4 of the Regulations):

• (a) travel expenditures, including expenditures for transportation, parking, meals and accommodation;

• (b) expenditures for the care of dependents or pets;

• (c) expenditures for counselling services;

• (d) expenditures for legal services and disbursements;

• (e) expenditures for obtaining any drug or device as defined in section 2 of the Food and Drugs Act;

• (f) expenditures for obtaining products or services that are provided or recommended in writing by a person authorized under the laws of a province to assess, monitor and provide health care to a woman during her pregnancy, delivery or the postpartum period;

• (g) expenditures for obtaining a written recommendation referred to in paragraph (f);

• (h) expenditures for the services of a midwife or doula (professional trained in childbirth);

• (i) expenditures for groceries, excluding non-food items;

• (j) expenditures for maternity clothes;

• (k) expenditures for telecommunications;

• (l) expenditures for prenatal exercise classes;

• (m) expenditures related to the delivery;

• (n) expenditures for health, disability, travel or life insurance coverage; and

• (o) expenditures for obtaining or confirming medical or other records.

The new Regulations take into account the various additional expenses associated with pregnancy. For example, with respect to the grocery reimbursement, Health Canada recognizes that a woman's overall health influences the health of her developing baby. The nutrient intake for pregnant women and women who are breastfeeding are generally greater than those of other women, which enables groceries to form part of the reasonable possible expenses for reimbursement.

As you can tell from the foregoing list, the Regulations will allow for pregnancy-related expenditures to be covered by the party enlisting the surrogate’s service. Health Canada is very clear in their Guidance Document that only a party who wishes to reimburse the legitimized expenses may do so, but that there is no obligation to reimburse a surrogate for the expenses they have incurred as a direct result of the pregnancy.

The perspectives on whether payment for surrogacy should be legalized vary across Canada. Some parties accept the current legislation and consider payment for surrogacy a slippery-slop which has the potential of making the process exploitative, while others believe that payment should be an option to acknowledge a woman’s right to choose how she uses her body.

Calgary fertility and surrogacy lawyer

This rapidly developing area of the law requires that your legal counsel understands the legislative and procedural changes. If you require a surrogacy agreement or independent legal advice on a fertility agreement or arrangement, contact Banaszek Family Law to schedule a consultation with Adrianna Banaszek, HERE.

Banaszek Family Law is here to assist you through the legal aspects of building your future ●

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Virtual Parenting: Banaszek Family Law explores the impact of virtual parent-child contact

The increase of virtual technology options, paired with ease of accessibility, has removed many barriers for parents to communicate with their children post-separation. But, we should not kid ourselves - all that glitters is not gold! Parents who rely (to varying degrees) on virtual technology to maintain relationships with their children often experience additional conflict with the custodial parent due to the introduction of the technological “godsend”.

Adrianna Banaszek, family lawyer and founder of Calgary-based law firm Banaszek Family Law, explains how the booming virtual technology sector has both positive and negative effects on children and their parents post-separation, and how common use of these alternate parent-child contact methods may develop a new legal landscape in Alberta.

What is Virtual Parenting?

“Virtual parenting” refers to parent-child contact and communication through the use of virtual technology.  Virtual parenting is usually parenting from afar through a plethora of communication means, including, text messaging, email, Skype, FaceTime, communicating through social networking sites, and good old-fashioned telephone calls.

Technology allows separated parents the option to increase communication and contact with their children when they are not the primary (custodial) caregiver or during the other caregiver’s parenting time. Whether the risks outweigh the benefits of these alternate modes of communicating for parents and their children is still out for debate.

Virtual tech is shaping the legal landscape

What is certain, however, is the judicial notice that virtual technology is receiving in the Alberta Courts when it comes to decisions about parenting arrangements. There is no doubt that technology has allowed parenting time to take place in situations where it likely would not otherwise. For instance, long-distance parenting arrangements are made possibility with communication technologies. The Alberta decision of BRH v RPS, 2016 ABQB 346, highlights that the use of virtual technology is a factor weighed in mobility applications (parents who wish to relocate the child to another jurisdiction) and long-distance parenting arrangements. Justice R.A. Graesser stated as follows:

[107] Technology will undoubtedly play a role. With technology, the absent parent can have daily face-to-face time with their child via Skype or Facetime, such that communications during non-parenting periods are not limited to one-dimensional telephone calls or written communications.

Although this particular case did not turn on maximizing contact between the parties, notice was taken of the parenting opportunities technology would afford (para 108). This decision was later appealed and the appellant mother was granted primary care of the child with the ability to relocate the child to Spain. Although the success of the appeal did not hinge on the role virtual technology would play, it was considered in allowing the father (non-custodian parent) generous access to his child who was to move overseas in between holidays and summers when in-person parenting time would be realized.

Is virtual technology an aid or a grenade for co-parenting?

Although virtual technologies are common place in the Western world today, there has been minimal research conducted about whether and how virtual parent-child contact impacts children, their parents and the parenting relationship post-separation. The minimal empirical research is most concerning when it comes to families involved in high-conflict disputes, which often stem from poor communication, lack of trust between the parties, and/or mental health issues.

Luckily, Dr. Rachel Birnbaum, is asking these very important questions through her research. Dr. Birnbaum is a social work professor at King’s University College, Western University, where she focuses her research on family justice issues. She conducted a survey which asked the following questions:

1. What conflicts, if any, do adult and child clients report as a result of using any type of technology for parent-child contact?

2. What benefits and challenges do family justice professionals believe about the use of virtual technology as a means of parent-child contact?

The Parents Report

The parents participating in the survey reported that the majority of conflicts occurred as a result of the following:

• 60% reported that the other parent listened in on their conversation with the child.

• 35% reported that the other parent alleged that the child is too busy doing something else at the designated virtual parenting time.

• 41% reported that the child is not available for the call at the designated time.

• 4% reported that the other parent alleges that they do not know how to use or set up the virtual technology to allow for the access.

• Other reasons conflict occurred: using the time to harass the custodial parent, using the child to harass the non-resident parent and child support/inappropriate discussions with the child, and some parents reported that they don’t want their children using technology due to safety or confidentiality concerns.

The Children Report

The children participating in the survey reported that the majority of conflicts sometimes occurred as a result of the following:

• 55% reported that conflict arose as a result of the child being busy and not always wanting to talk to the other parent at the time.

• 45% reported that the child does not have a lot to say to the other parent and the other parent gets upset due to this.

• 39% reported that the other parent is listening to the conversation during the parent-child contact.

Children mostly expressed that although virtual parenting was advantageous, virtual access did NOT alleviate their longing for their parent, and that the virtual parent contact increased their anxiety and sadness about the absence of physical contact with their non-resident parent.

The Lawyers Report

The survey found that from the perspective of family justice professionals, the risk of using virtual parent-child contact is for evidence gathering, meaning the contact is sometimes focused on planning future litigation rather than to strengthen the parent-child bond. The majority of professionals concluded that the benefit of virtual contact is that the child may maintain contact with their parent over geographical distances (beneficial for mobility applications and to foster the parental-child bond).

Benefits and challenges of parenting via virtual tech

Dr. Birnbaum’s survey findings support that there are both risks and rewards surrounding virtual parent-child contact. The risks as identified by the parents result mainly from privacy and confidentiality and the burden placed on the custodial parent to organize the parent-child contact. The benefits include that the child may maintain an ongoing relationship with a parent that they are not constantly in-person contact with. It also has the potential of reducing hostility between parents because they have no contact (or minimal contact) with each other – this is more relevant for children who are older and able to use the technology without assistance or supervision from the other parent.

The findings are important as this is a time when virtual parent-child contact is increasingly being recommended by family justice professionals and the court as a means of maintaining parent-child relationships post-separation. Dr. Birnbaum notes that more research is required to determine the impact of the relative costs and burdens to parents having to provide the technology and how much adult assistance is required to organize and have the child available at the designated time, along with examining the safety risks underlying the use of the different types of technology.

*The study is limited by the sample size.

Implementing virtual parenting post-separation: Whose job is it, anyway?

The short answer is: it is the responsibility of both parents. Although the custodial parent may not believe that they benefit from their child interacting with their ex-spouse or the other parent in situations of high conflict, Canadian courts are very clear that for children to maintain relationships with both parents, both parents must be involved. Maintaining relationships with both parents after the parties have separated is highly valued by the Courts and it is considered to often be in the best interest of the child.

Canadian courts have ruled that custodial parents have an obligation to promote compliance with custody and access orders and cannot simply leave the questions of custody and access up to the child. This means that there is an obligation on the custodial parent to actively facilitate access with the other parent by ensuring that the children are available for the virtual or in-person parenting time. For more information on access enforcement, read the Department of Justice Canada’s Overview and Assessment of Approaches to Access Enforcement: An Update by Dr. Martha Bailey.

Need help crafting a parenting plan post-separation? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer independent legal advice and representation to serve your custody and parenting needs, whether that is drafting a Separation Agreement which includes a comprehensive parenting plan, or representing you in your family law and divorce litigation.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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