“I believe that in Quebec©, women`s decision-making autonomy©is a recognized© and extremely important right. In the©event that a surrogate wants to have an abortion along the way, it`s up to© her, it`s her decision. As we briefly noted in the introduction, laws in Canada vary from province to province. At the federal level, Parliament passed a law on assisted human reproduction in 2004. Article 12 of this law states that “it is prohibited to reimburse the expenses of a surrogate mother”. By regulating a possible “reimbursement of expenses” incurred by the surrogate mother to act in this capacity, section 12 of this Act appears contrary to Quebec civil law. Article 541 of the latter provides that “any agreement by which a woman undertakes to conceive or give birth to a child on behalf of another person shall be absolutely null and void”. In its most recent case law of 2010, the Supreme Court had the opportunity to rule on the compatibility of the two statutes, to confirm the constitutional validity of section 12 of the federal statute and to attach it to the exclusive criminal jurisdiction of the Parliament of Canada.1 Thus, the Civil Code of Québec is not in danger. Section 12 of the Federal Act cannot be interpreted as implicitly authorizing a practice such as the conclusion of a surrogacy contract.
Its purpose is simply to prohibit an activity, in this case the reimbursement of expenses incurred by a surrogate mother. Because of this nullity of “surrogacy contracts”, the Civil Code of Quebec is simply stricter than the federal law. In all cases, surrogacy in Quebec is not considered a criminal act, but an illegal act. This nuance is important because the courts do not impose repressive sanctions, but passively express their disapproval and refuse to approve such a treaty. These considerations lead to a legal vacuum that the Quebec legislature voluntarily created in order to discourage couples from resorting to this type of reproduction, which implies an impossible exclusion, and to find justification for it on several grounds. Bill 2 provides© that the reimbursement of certain expenses©to the surrogate mother as well as compensation for loss of income are eligible. Canada is a state with several federated regions that may have a difference in legislation. This is the case with surrogacy legislation. Canadian federal law clearly and explicitly prohibits the surrogate mother`s payment contract. The law defines practices related to assisted reproduction, including by prohibiting in Article 6 the “remuneration of the surrogate mother”. Article 6 criminalizes surrogacy contracts for financial reasons. While some regions recognize and legislate the surrogacy contract, these regions require a basic condition: contracts must remain free and it is strictly forbidden to conclude contracts against remunerated interest in order to avoid any form of abuse, such as the commercialization of the woman`s body.
Let us take a few examples of legislation in the regions. As far as Quebec is concerned, we can immediately emphasize the paradox between this “right to have a child” for same-sex couples and the prohibition of surrogacy in Quebec. Let us first examine this prohibitive legislation concerning surrogacy contracts (I) before examining in a second step the acceptance of contracts concluded abroad by Quebec (II). With regard to the use of surrogate mothers, the Government of Quebec intends to require the parties©to enter into a surrogacy agreement before the end©of the pregnancy. And this by notarial deed©, if the parties are domiciled in©Quebec©. Special rules are provided if© the surrogate mother resides©outside Québec©. Experts are also concerned that the bill is “silent” on these 4% of babies born with a health problem, some of whom can be detected in utero. “Only the surrogate mother can make the decision to abort,” says the FMSQ.
It is prohibited to pay a female person to act as a surrogate, offer the payment of remuneration or announce© the payment of such© tribute, the©legal document© says. ©© One thing is certain, these are serious problems and the FMSQ welcomes the idea included in the training bill for surrogate mothers and future parents, so that those who engage in the project do so “with their eyes open,” says Dr. Igartua. Anyone who pays a surrogate in©Canada is liable to a fine of up to $500,000 and imprisonment for up to 10 years. ©The long-awaited reform of family law was forged©© Thursday by Minister Simon Jolin-Barrette with the tabling© of Bill 2, which allows© the use of surrogate mothers with a strict legal framework to protect©the unborn child and the®woman who carries it. This illegality has a number of harmful consequences for the various actors involved in such an agreement. First of all, in the eyes of the law, it is the surrogate mother who will be the mother of the child. Filiation therefore depends on the decision of the surrogate mother after the birth of the child. If she agrees to give up her rights as a mother, the intended couple could adopt the child together. However, even if the surrogate mother decided to renounce her rights by abandoning the child, the commissioning parents would not have the security of being able to adopt him. In fact, the courts have already rejected adoption by the commissioning parents in this case.
Otherwise, banning surrogate mothers would not be effective. In an attempt to balance the interests of the child with the ban on surrogate mothers, the Court of Quebec decided in a recent decision to terminate the surrogacy contract. It recognizes the sole father as the child`s biological parent, depriving the child`s spouse of all rights (e.g. consent to custody, possible contact, etc.). In addition, there is a condition, since the Civil Code provides that adoption is permitted only if it respects the best interests of the child. These conditions obviously include the specific context of the surrogacy contract, since allowing adoption in such circumstances would indirectly legalize an otherwise prohibited contract. Learn all about surrogacy in Canada from trusted experts. At Extraordinary Conceptions, our team explains how to become a surrogate anywhere in Canada.
Find out more today! However, some feel that this is insufficient and that surrogacy©©pay should be criminalized©©. That`s why Mount Royal MP©©©Anthony Housefather introduced©© a bill in 2018. The Law Enforcement Assistance©©Act has been in force since 2004. According to Article 6, the tribute of the©surrogate mother is divided©. If you`re considering surrogacy in Canada, our team is here to help. With us, you`ll get the support you need every step of the way, from the decision to become a surrogate to the request to carry and give birth to the baby. A surrogate is a woman who agrees to carry a child to help someone else. The child may or may not be born from one of his eggs.
When the child is born, the surrogate mother gives it to the person or couple who used her services, free of charge or for a fee. It`s really important, because right now there are children who find themselves without legal protection,” says Jolin-Barrette. It mentions the case of intended parents who come into conflict with the surrogate mother in the eighth month of pregnancy and do not want to know anything more about the child.