In March 2023, the provincial government announced a major reform of family law in Quebec. Among the announced changes was the legislative framework applicable to surrogacy. Indeed, Bill 12 considerably modified the law relating to surrogacy. Behind these legislative changes, practical and ethical considerations were put forward by the government. Although certain concepts will eventually need to be clarified by the legislator and the courts, this article aims to provide an overview of the law regarding surrogacy.
Formation of the parental project: required conditions and formalities
The Civil Code of Québec provides in articles 541.1 to 541.37 the various rules governing surrogacy, specifically the “surrogacy parental project“. First and foremost, a single person or spouses must form a parental project with a woman or a person who will give birth to the child. This project is formed as soon as the decision is made to use a third party to give birth.
Certain conditions must be met regarding the choice of the person who will carry the unborn child. The conditions are as follows1:
- Be domiciled in Quebec for at least one year2
- Be 21 years of age or older
- No combination of reproductive material is possible with siblings, ascendants, or descendants
Contrary to a certain popular belief and to what is permitted in the United States, the chosen person cannot be remunerated, strictly speaking, for carrying the child. However, she will be entitled to the reimbursement of certain expenses and compensation for loss of work income, if applicable. The expenses that can be reimbursed are set out in detail by regulation3.
Before the start of the pregnancy, the persons involved in the parental project must participate separately in a meeting with a professional responsible for informing them of the psychosocial implications and ethical issues related to the parental project. They must obtain a signed certificate of participation in this meeting to proceed with the project.
Once the information meeting has been held, the parties must enter into a surrogacy agreement, which must be done before a notary. This legal requirement is new.
Impossibility of waiving the establishment of filiation
The person carrying the child cannot, in the surrogacy agreement, waive in advance her right to express her will to establish her filiation with the child after birth. Her consent is required for the child’s filiation to be established with the intended parents at the time of birth. Thus, there is always a possibility for the surrogate mother to reconsider her initial decision to entrust the child to the creators of the parental project. This principle is part of the respect for the right to autonomy of the woman carrying the child. The surrogate mother can therefore decide to remain the child’s parent, even if that was not the initial plan.
Perspectives outside Quebec
The Civil Code of Québec provides specific provisions applicable to the parental project when the person who gave birth to the child is domiciled outside Quebec. To date, however, some of these provisions are not yet in force.
Currently, the Government of Quebec only recognizes the following foreign states: Alberta, British Columbia, Prince Edward Island, Manitoba, Nova Scotia, Ontario, and Saskatchewan. Thus, for the moment, these are only Canadian provinces. It can be expected that other states will be recognized in the future according to government requirements.
In addition to the other formalities already required by law, the parties involved must also obtain prior authorization from the Ministère de la Santé et des Services sociaux. Once authorization is received, additional authorization is required for the signing of the parental project and its continuation. Thus, it is noted that the steps are much more numerous when the parental project involves a person domiciled outside Quebec.
Conclusion
Finally, the surrogacy parental project brings its share of questions, some of which sometimes remain unanswered. It will be interesting to follow the evolution of the applicable law in this matter, as the reform is still very recent. In the coming years, the courts will certainly have to examine the subject and develop case law. In any case, considering the complexity of the various rules, it is recommended to meet with a legal advisor before undertaking steps to conclude a parental project, in order to be well-informed of the risks and implications.
