A 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.
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.