Civil Code of Quebec Court of Quebec Family law Quebec Court of Appeal

Surrogacy agreements illegal in Quebec

mother-childA woman who sought to be legally recognized as the mother of a child borne by a surrogate mother was thwarted by a Quebec Court judge who held that, unlike in the rest of Canada, surrogacy agreements are illegal in Quebec.

“This child does not have a right to maternal filiation at any cost,” said Judge Michel Dubois in his 11-page ruling.

The woman, a mother of two, tried to become pregnant once again and bear a child with her new spouse. She tried artificial insemination, in vitro fertilization, and other assisted human reproductive techniques for seven years, without success. The couple then turned to surrogacy. They found a surrogate mother while surfing on the Internet, met with her and came to a verbal agreement. The surrogate mother, a mother of five with experience in surrogacy, would receive $20,000 to cover for hardship and expenses. Shortly after the meeting, she was artificially inseminated with the sperm of the spouse.

At the time of birth the couple faced two options. The surrogate mother would pen her name on the infant’s birth certificate identifying her as the mother, and then sign adoption papers for the spouse of the father’s child. Or the biological mother would not declare her maternity to the Directeur de l’état civil, the only public officer in Quebec authorized to issue genuine certificates and copies of documents relating to civil status events, in which case the biological father could then ostensibly file for adoption papers to have his spouse recognized as the mother of the child.

Two days after the baby girl was born, the biological mother signed documents consenting to the adoption of the child to the father’s spouse. “The evidence reveals a convoluted and carefully planned parental project by the applicant and  the father of the child,” noted Judge Dubois. “Whatever the ruling by the Court, it will have no impact over the inescapable reality that the child will continue to live with his father (the only filiation recognized) and his spouse.”

The couple argued that the best interests of the child demands that the maternal filiation be established after the adoption consent was signed by the biological father and his spouse.

Informed by the Quebec Court of Appeal in Renvoi fait par le gouvernement du Québec en vertu de la Loi sur les renvois à la Cour d’appel, L.R.Q. ch. R-23, relativement à la constitutionnalité des articles 8 à 19, 40 à 53, 60, 61 et 68 de la Loi sur la procréation assistée, Judge Dubois points out that under the federal Assisted Human Reproduction Act, enacted by the federal government five years ago, paying a surrogate mother is illegal.

Some provinces such as Ontario and Nova Scotia permit surrogacy, but only under altruistic pretenses. Not so, in Quebec, said Judge Dubois. In Quebec it is illegal to have surrogacy arrangements of any kind.

“It goes without saying that the Court is not here to criminally sanction the conduct of the applicant, the father of the child, the biological mother or anyone else,” said Judge Dubois.

The Civil Code too comes into play in this case. Under s. 541 of the Code, no adoption may take place except in the interest of the child and on the conditions prescribed by the law.

Judge Dubois held that the prerequisite “conditions prescribed by the law” goes beyond following the formal procedures outlined by the adoption process which in part consists of signing consent forms. “Unless one chooses to put on blinders, it is not possible to isolate the question over the validity of the consent with the preceding steps concocted during the execution of the parental project by this couple,” said Judge Dubois. “The consent was vitiated because it was part and parcel of an illegal undertaking and contrary to public order.”

Judge Dubois concluded that the child does not have the right to maternal filiation at any cost. Under the circumstances, allowing the spouse of the child’s biological father to adopt the child would be evidence of wilful blindness and confirm that the ends justify the means.

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2 Comments

  • Reply
    Matt
    June 7, 2012 at 13:12

    This is nonsense. My wife and I are going through this process now. We had a surrogate ( my sister) carry my wife’s egg that had been fertilized by my sperm and then implanted into my sister’s uterus. We have our lawyer working to help us to have my wife written as the mother on paper. It isn’t the old days anymore, people are having children in different ways now and to tell someone they are not allowed to be called the mother is ridiculous. There is no actual meaning in the civil code of what is a mother. There is nothing written saying that a mother is necessarily the one who carried and gave birth to the child. Other provinces in Canada understand the meaning of a surrogate and how it works, why can’t Quebec update their systems and recognize the whole meaning behind it.

    • Reply
      Colette Germain
      July 27, 2013 at 16:50

      I totally agree, this judge Dubois is some kind of a jerk to no end…he probably has kids of his own and don’t care about what people are going through that really would like to have kids…what a ridiculous judgment, he should get with the times, I just can’t get over this…what a stupid man, in Quebec they pay for 3 trial of IVF, so a women could have frozen eggs ready to be transferred but only if her endometrium is lush enough (at least 8 cm), so if there is a problem with getting that result from multiple trials, that means what…a judge can stop all this…why would they not allow surrogacy…my daughter is hypopituritism and cannot have an endometrium thick enough to carry a judge concludes that is it for her….that a farce…Quebec should embrace surrogacy to complete the IVF process…get with the times…and I say challenge Judge Dubois’s ruling…

    Thoughts?