Surrogacy in Quebec: First Legal Test
Notwithstanding the unambiguous language of article 541 of the Quebec Civil Code (CCQ), which states "Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null”, a Quebec couple, recently requested the Court to acknowledge a de facto situation and give to a child born out of a surrogacy pregnancy a different material filiation than the biological one.
After many unsuccessful attempts to conceive, the couple in question decided to use a surrogate (using the spouse’s sperm) to fulfill its desire to have a child and as a result a baby girl was born in a Quebec hospital. The couple, and the biological mother (surrogate), omitted purposefully to complete the section of the birth certificate pertaining to the mother’s identification and only acknowledged the paternal filiation. Their plan being for the father to consent to the baby’s legal adoption by his spouse, who would then legally become the mother of the child.
However, Justice Dubois of the Quebec Court concluded otherwise. In an unprecedented judgment, and notwithstanding the fact that the baby is being raised by the couple and the spouse is the de facto mother, Justice Dubois rejected the couple’s Request for Adoption, leaving the child’s birth certificate without any maternal filiation.
In his judgment, Justice Dubois firstly, declared that the father’s consent to adoption by his spouse was vitiated since it was an integral part of an illegal process which was against public order. And secondly, in his opinion, the couple’s parental endeavor was planed in defiance of the law. Presenting the Court with a situation of “fait accompli”, the couple was openly presuming that the Court would be moved by their story and would place the “interest of the child” above any other existing principles of law. Justice Dubois asserted that article 541 of the CCQ clearly stipulates that “No adoption may take place except in the interest of the child and on the conditions prescribed by law.”
The Court also noted that although the “interest of the child” principle is important, it is not the only decisive factor, and as such it should not supersede or make null and void all prior illegalities. The Court further expanded that the child does not have a right to a maternal filiation at any cost, and as such the end does not justify the means.
The parents did not appeal the said decision.
In view of the fact that surrogacy is seemingly an ongoing practice in Québec, notwithstanding the Quebec Civil Code’s disposition, the Young Bar Association and other interested parties have requested the government to review the Quebec legislation while suggesting that it would be better to strictly regulate the service rather than to prohibit and ignore the practice.
Christine Baudouin, LLB
Heenan Blaikie LLP, Montréal, Québec
(available in French only)