How to fix Quebec’s surrogacy laws

By Yves Faguy August 7, 20187 August 2018

How to fix Quebec’s surrogacy laws


Though surrogacy is legal in Canada, surrogacy contracts are mostly deemed unenforceable throughout the country.  In Quebec, they are qualified as “absolutely null” under the Civil Code’s article 541. That means that in Quebec a woman who agrees to carry a child for another individual or intended parents is deemed a threat to public order. So the contract, whether verbal or in written form, may not be enforced. But in an article recently published in the Canadian Bar Review, McGill University’s Stefanie Carsley notes that lawmakers have largely failed at dissuading people from taking the risk of entering surrogacy arrangements. Intended parents in the province have sought ways around the unenforceability issue by applying to the courts for legal status through adoption – more specifically through special adoption. This allows one birth parent to maintain their bond of filiation while their spouse adopts the child.  Carsley reviews recent Quebec case law addressing article 541 and concludes that the province’s legal framework is failing all parties:

While article 541 CCQ was intended to protect surrogate mothers, in practice it leaves surrogates in a precarious position. Quebec’s current regime fails to offer surrogates any protection should one or more intended parents change their minds and refuse to honour their agreement to take the child. This may happen, for instance, if the child is found to have a disability, if the intended parents divorce, or if an intended mother becomes pregnant after the surrogate conceives. The surrogate may be left to care for and pay for the costs of raising a child that she did not intend to keep, while the intended parents might not experience any financial or legal repercussions for their actions. At most, an intended father might be held liable to pay child support, but only if he used his own sperm to conceive.

There are issues, too, with establishing the child’s filiation, even though it is clear, according to Carsley, that jurisprudence confirms now that Quebec courts may grant special consent adoptions.

Despite recent jurisprudence, intended parents still face uncertainty, risks, or potential delays in seeking a special consent adoption. Where a surrogate mother consents to relinquish her parental rights following the birth, intended parents still cannot be certain that they will be afforded state recognition. In the absence of legislation clarifying the filiation of children born through surrogacy, courts continue to be called upon to determine whether to allow for a special consent adoption on a case-by-case basis. Since judges’ decisions regarding whether to allow for the adoption may turn on the facts of a case and assessments of children’s best interests, intended parents might not be granted an adoption if the circumstances of their cases differ from those in existing precedents.

A recent report drafted by the Comité consultative sur le droit de la famille concluded that the Civil Code does not adequately balance the interests of surrogates and intended parents and offered recommendations for reform. Carsley supports many of these and also proposes that Quebec’s lawmakers draw inspiration from British Columbia’s Family Law Act and Ontario’s Children’s Law Reform Act to rethink Quebec’s surrogacy laws. Both provinces have laws in place that lend some weight to surrogacy agreements – even though technically unenforceable – may be used as evidence of the intended parents’ and surrogates’ intentions. They also recognize multiple-parent families where a child is born through surrogacy or gamete donation.

Do read the whole article.

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