All around the world, LGBT couples are beset with struggles when it comes to welcoming children into their families. Adoption and surrogacy processes range from the draconian, with hoops and hurdles laid out for prospective parents, to the genuinely forward-thinking. While ‘progressive’ might not be the first adjective one chooses to describe Alberta, a recent conversation with Ellen Embury – a Calgary lawyer who specializes in surrogacy law – suggests it might just be spot-on.
"I think that we’re extremely lucky in Alberta," Embury says. "Unlike Ontario, for example, we have legislation which protects the interests of people in non-heterosexual relationships who want to have children." For the last eight years Embury has made it her mission to help couples – mostly gay and lesbian couples in long-term relationships – form families.
"In my mind, British Columbia and Alberta are the two jurisdictions that are at the top of the heap. They’re the most LGBTQ-friendly jurisdictions in the country," Embury said, referring to changes made to Alberta’s Family Law Act in the summer of 2011. "[The changes] allowed gay men in particular to both be considered the parent of a child that they had conceived through assisted reproduction... as long as one of them is genetically linked to the baby who is carried by a surrogate... both dads are allowed to go on the birth certificate."
Believe it or not, the news is good all the way around for prospective queer parents.
"In Alberta, lesbian women are actually in the best place ... if one of the women gives birth, and they’ve used a sperm donor, they don’t need a parentage declaration – there’s no court order. Their partner goes on the birth certificate from day one as the other parent."
Trans, gender-queer, and androgynous individuals will also reap the benefits of these changes. The 2011 revisions to the Family Law Act struck down the gendered terms "mother" and "father" in favour of the singular term "parent."
According to Embury, gay men in Alberta are increasingly opting for surrogacy as a means to have a child, especially since 2011. For the uninitiated, this process involves one partner contributing sperm to a donor’s egg to make an embryo, which is then implanted in a third party who will carry it to term. It is not difficult to find someone to help.
"There are many, many, many women out there who love the idea of helping a gay couple have a family," Embury emphatically states. But it is costly. Though surrogates are legally prevented from deriving income from the service, they are entitled to reimbursement of their expenses during pregnancy, which typically ring in at roughly $20,000. Add to that another $20,000 in clinic fees and between $7000 and $8000 in legal fees; the process is not for the faint of heart.
"The men who tend to want to pursue this have thought so much in advance about wanting to be a parent... and, as a result, I find that they tend to be just incredibly devoted parents, both during the process and after," Embury adds. "I do see a trend, however, in that more gay men are choosing to use what [are] called traditional surrogates."
Traditional surrogates are women who contribute their own eggs to the process. While this almost completely eliminates the clinic fees, it also means that other services provided by the clinic – such as screening for genetic diseases in the embryo – are unavailable. And there are other restrictions.
"I’m always very clear with my clients – and I can’t imagine that any of them would do this to save money – but I always tell them, under no circumstances can you have sexual intercourse with this woman! They always say, Oh my god, that would never happen! You can get a home-insemination kit on the internet and do it that way."
Lest there be any lingering unease about a traditional surrogacy complicating the process of establishing legal parentage, it’s a long-established provision of the Family Law Act (Section 7, Subsection 4, to be precise) that a person who donates reproductive material is not by that reason alone a parent. The contributing father is immediately declared a legal parent, and following less than a week of legal legerdemain, his partner will become co-parent in perpetuity.
When we asked Embury what has stood out most about these past eight years of building families for Calgary’s queer community, she answered: "[It is] constantly incredible to me how devoted these men are to the children... Many of them have gone through prenatal classes, and they’re so interested in figuring out how to swaddle, and following all the instructions... There’s the joy that you see on a mom’s face, for sure, but there’s absolutely no difference when it’s two men. It’s really, really, really thrilling."
