The Canadian Press


Quebec is slowly but surely moving toward officially recognizing contracts drawn up between surrogate mothers and couples looking to conceive.

If it happens, it could mean the dawning of a small revolution in family law in the province.

Currently, contracts drawn up between couples and surrogates have no legal value. Nothing prevents either of the parties from changing their minds at any point in the process, without suffering any consequences.

Article 541 of the Quebec Civil Code reads: “Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.”

That can leave serious questions hanging in the balance: What happens to the child? Who is responsible?

It’s precisely these very delicate questions that a committee headed by Alain Roy, a law professor at the University of Montreal, is trying to answer.

In an interview with The Canadian Press, Roy spoke at length about his belief that babies born to surrogate mothers have the same rights as those extended to all other children.

To accomplish that, Quebec needs to bridge a legal divide that for decades has served to “sweep under the rug” children’s rights under the pretext of respecting the private lives of the adults involved in such a transaction.

When asked whether Quebec should push to begin legally recognizing these kinds of surrogacy contracts, he responded by asking two questions. “Can we allow ourselves to shut our eyes? Can we allow ourselves to maintain the status quo?”

Committee looks to bring family law into 2015

Since 2013, Roy has presided over a committee composed of 10 experts tasked with proposing a legal framework to establish clear rules for family law in the face of new social realities.

It has been looking at very complex cases in efforts to construct rules that better reflect today’s families and the families of the future while maintaining children’s rights to knowing where they come from.

For example, a child is born to a surrogate whose uterus was implanted with the mother-to-be’s egg fertilized by the sperm of another man who is not the father-to-be. Who is technically responsible for the child — the surrogate, the couple or the sperm donor?

Roy wants to improve accountability and responsibility for all parties involved in the conception of a child. He said children should be able to access information about their biological parents, if only to know more about his or her own identity.

He pointed to an example of a baby born with Down Syndrome.

“If we don’t recognize the contract, that means that the surrogate mother will bring a baby with [Down Syndrome] into the world, and the intended parents are not responsible,” Roy said.

The committee will also look at “procreation tourism” and whether contracts struck up outside of Quebec should be valid in the province. He said many Quebecers desperate for a child go to India to find surrogates.

The committee will report to Quebec Justice Minister Stéphanie Vallée in the spring.

Roy promises it will be an exhaustive and in-depth consideration of the ethical, legal and historical aspects.

Surrogacy is legal in Canada, as is reimbursing a surrogate mother for costs incurred during pregnancy. However, paying a woman outright to carry a child is illegal. 

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