A proposed Quebec legislative reform that recognizes and regulates surrogacy in order to protect the best interests of the child, establishes new regulations on parentage, and aims to protect children born as a result of sexual assault has been commended by notaries but drawn mixed reaction from family law experts.
Bill 12, part of an ongoing effort by the provincial government to revamp family law, allows a child born as a result of rape to challenge his filiation to the assailant, compels the aggressor to pay compensation to meet the child’s needs, amends the Civil Code of Québec to specify the various ways of establishing filiation, and puts Quebec on the same footing as several other provinces by giving legal recognition to surrogacy contracts.
In Canada, surrogacy is allowed as long as the surrogate mother is not paid. In Quebec however surrogacy contracts are currently not legally binding under the Civil Code, leading parents who have conceived by way of a surrogacy to resort to the time-consuming adoption process to be legally recognized as parents. That will no longer be the case if the bill is adopted. Under the new legal regime proposed by the reform, prospective parents would have to take part of an information session on the “psychosocial implications and ethical issues the parental project involves” before concluding a notarized surrogacy agreement or a notarial act en minute before the onset of pregnancy.
“Notaries have been dealing with couples for several years now who want to have access to a surrogate, but since it is illegal, they proceeded by way of adoption, which is more complex and judicialized,” said Kevin Houle, president of the Professional Association of Quebec Notaries. “We are really pleased that the legislator has formulated a new provision in the law that will allow surrogacy contracts, in notarial form which has the benefit of being a process that will be totally non-judicial.”
Family experts disappointed
But family law experts are disappointed that the reform grants notaries the exclusive right to draw up surrogacy agreements, fails to recognize multi-parenting, forsakes long-awaited changes to the status of common law relationships, and is riddled with glaring short-comings.
“I have a whole range of concerns, at all levels,” remarked Marie-Christine Kirouack, Ad.E, director and former president of the Association of Family Lawyers of Quebec. The same goes for Michel Tétrault, Ad.E, a family law expert who has written several books on Quebec’s family law regime. “It was rushed, and then, well, in the rush, there were some oversights,” said Tétrault. “There are many strands that are not tethered, and it’s unfortunate because the surrogate, the child, the intended parents and the courts will be asked to tie the strands.”
Quebec family lawyers are perplexed and vehemently opposed that surrogacy agreements have to be in notarial form under Bill 12. Before the National Assembly parliamentary hearings held in late March, Quebec Justice Simon Jolin-Barrette described opposition to this provision as “corporatist.” He added that notarized agreements provide legal safeguards and have evidentiary force “which is not the case with an agreement between two parties if it is not notarized.” A notarial deed en minute will prove its content, including the date certain of the writing, the identity of the parties, the validity of a free and informed consent and the truthfulness of the elements contained in the agreement, pointed out Houle. Unlike lawyers, added Houle, notaries have the power to give legal advice to both parties, even if they do not share the same interests. But that’s a line of reasoning that does not sway Kirouack. “We are tabling a bill where all of a sudden we want to take away the competences of lawyers, including mine,” said Kirouack, who’s been drafting surrogacy agreements for more than two decades. It should be possible to conclude surrogate pregnancy agreements under private deed, said Kirouack, now an ombudsman at the Archdiocese of Montreal.
Kirouack, like other family lawyers who testified before the National Assembly, is concerned that there is little protection for surrogate mothers under Bill 12. Kirouack maintains that the surrogacy agreement places the inherent risks on one person — the surrogate mother. Under the bill, and as with the rest of Canada, it is forbidden to pay a surrogate mother, though her expenses can be reimbursed as well as her loss of earnings during the pregnancy. But there is no provision under Bill 12 that financially protects the surrogate mother in the event she is unable to work due to perinatal after-effects stemming from the pregnancy, noted Kirouack. Neither does Bill 12 contain any provision to protect the children of the surrogate mother in the event of her death. The Association of Family Lawyers of Quebec recommends that the government include a provision requiring prospective parents to obtain disability insurance for the benefit of the surrogate mother and life insurance for the benefit of her children or spouse. “If we are really in favour of legislating surrogacy, we should protect surrogate mothers in terms of the dangers linked to pregnancy, which is not in the bill,” said Kirouack. Tétrault takes it a step further. He too believes that insurance should be part and parcel of the surrogacy contract but a quantum should be stipulated, otherwise “it becomes a negotiation and it can lead to abuse in certain cases.”
Bill 12 has other troubling oversights, assert legal pundits. Under a new article of the bill, the mother who gives birth must declare the filiation of the child with due regard. “It is difficult to understand the discrimination in such a provision,” said Kirouack. “If there is to be an obligation to the law, why is it not in respect of both parents and only in respect of mothers?”
Another issue likely to surface deals with Article 523 of the bill which stipulates that the filiation of a child is established with regard to the mother or parent “by the fact of their having given birth to him and, with regard to the father or other parent, by the acknowledgement of a bond of filiation in the declaration of birth.”
But the article omits to take into consideration “genetic realities,” a lapse that can be particularly disconcerting since Bill 12 allows the surrogate mother to change her mind until the 30th day after the birth, said Kirouack. If the surrogate mother carries a child who was conceived by the sperm of the prospective father and she decides no later than the 30th day following the birth that she is not going to follow through with the parental project, at that point the rules of affiliation by blood apply, which means that the prospective father will be declared the father and the surrogate mother will be deemed to the mother of the child – as occurred in the infamous custody case involving Baby M in the U.S.
In cases where the surrogate mother was implanted with the egg and sperm from the prospective couple, the father will be declared as father of the child and the surrogate mother will be adjudged to be under Article 523 as the legal mother of the child even though she has no genetic link to the child, notes Kirouack. In yet another plausible scenario, if a surrogate mother was implanted by a sperm donor and with the prospective mother’s egg, the surrogate mother will be regarded as the only legal mother because from she gave birth even though she has no genetic link to the child. “From the point of view of the genetic reality of the children who will be born of assisted reproduction, the bill has not really been thought through,” remarked Kirouack.
The family law reform dealing with surrogacy suffers from other lapses, points out Tétrault. Bill 12 makes no mention of agencies, a staple in other provinces, and just as troubling “they have no idea what a surrogacy contract is and what’s in it – that much is clear,” said Tétrault. Maureen McTeer, a visiting law professor at the University of Ottawa and author of “Fertility: 40 Years of Change,” called on the federal government to conduct a for a full and comprehensive Parliamentary review on the Assisted Human Reproduction Act and to establish standard rules applicable across Canada. “The privatization of fertility services has meant that corporations now control essential human health and safety data for these services,” said McTeer in a submission last September to the House of Commons Standing Committee on Health. “Fertility treatments are just another unregulated business transaction between a company and a customer. The unregulated and variable costs of these services raise equity and access issues for the infertile.” Tétrault too is calling on the Quebec government to regulate agencies to avoid a “Wild West” situation as took place with international adoptions “when there were agencies all over the place and there was no real control” in the province before the Quebec government clamped down.
Quebec Human Rights Commission
The Quebec Human Rights Commission, too is urging the provincial government to provide oversight over agencies. The Commission welcomes the legal framework for surrogacy established by Bill 12 – in spite of several reservations — as it can be an “effective means to supervise and protect both the resulting child and the women who agree to give birth to a child in the context of a surrogate pregnancy project,” said Karina Montminy, a legal advisor with the Commission.
Under the legislative proposal, the standards for the reimbursement or payment of certain expenses to a woman or person who has agreed to give birth to a child will be determined by government regulation. However, the enabling provision of the Civil Code does not provide any criteria for setting these standards, notes a brief submitted by the Commission to the National Assembly’s parliamentary committee.
The Commission maintains that it is “imperative” that under no circumstances should surrogacy amount to the sale of a child or the instrumentalization of a woman’s body for commercial purposes. As a result, the legislator must send a very clear message to the parties such as assisted reproduction agencies, lawyers or health professionals regarding reimbursable costs, according to the Commission. The role of intermediaries in the process of surrogacy, which is often central, has been found to be “problematic and denounced” in Canada and around the world, according to the Commission. “What we are worried about, which is what is also at the heart of surrogacy practices, is commercialization,” said Montminy. “How can we ensure that there is no commercialisation? This means ensuring that the sale of children is prohibited. And also, as a corollary, to really ensure the non-instrumentalization of the woman’s body.”
The other main thrust of the Quebec family law reform too is laden with lapses, and clearly signals that the government failed to its homework, said family law experts. Though well-intentioned, the provision under Bill 12 that allows a child born out of a sexual assault to challenge his filiation with the assailant is problematic, they added. As Bill 12 is now written, there is a chance that a judge may eventually hold that it is in the best interests of the child that there is filiation, said Tétrault. In that case, the mother would have to seek for the revocation of parental authority before the courts, a situation that is far from ideal for the mother. Tetrault believes the issue can be easily resolved by providing two options that gives victims the choice: one would be to ensure that the assaulter has no filiation, and if there is no filiation there is no parental authority. The other alternative would be if the mother, that is the victim of the assault, decides that there will be filiation, then there should be a total and irreversible revocation of his parental authority, affirms Tétrault, a recommendation embraced by Kirouack.
Also problematic under Bill 12 is the provision that makes the assailant pay compensation to meet the child’s needs. It would have been “preferable for the legislator to choose, like so many other jurisdictions,” to recognize the filial bond without parental authority and to allow a direct recourse for support, and not as decreed by Bill 12 through a lawsuit for damages, said the Association of Family Lawyers of Quebec in a brief. Tétrault believes that it would far simpler to turn to the Direction de l’indemnisation des victimes d’actes criminels (IVAC), the provincial body that administers the Quebec crime victims compensation system. “They had not studied the issue” and the ramifications of what they proposed under Bill 12, said Tétrault. “We have a system in Quebec, while imperfect, compensates victims of crime. Why don’t we use that? This means that the victim does not have to go to court., and we can be sure of one thing above all, that the government agency will remain solvent.”
Briefs submitted to the Quebec National Assembly:
- Association of Family Lawyers of Quebec
- Association of Progressive Lawyers
- Barreau du Québec
- Chambre des notaires du Québec
- Council on the Status of Women
- Federation of Medical Specialists of Quebec
- Family law expert Michel Tétrault
- Professional Association of Quebec Notaries
- Université Laval law professor Louise Langevin
This story was originally published in Law360 Canada.