Posted By Colleen Morawetz
Third-party reproduction is a hot-button issue for ethicists and legislators alike. Throughout Canada, it is legal for a woman to carry someone else’s child, with the understanding that she will yield the child to its legal and/or biological parents upon its birth. However, the governing federal legislation, the Assisted Human Reproduction Act (AHRA), states that it is categorically illegal to pay a woman for these surrogacy services.
Beyond illegal or ambiguously legal remuneration, which usually occurs informally for fear of leaving a damning “paper trail”, the question of formal agreements remains. Absent legislative prohibitions, a surrogacy contract could cover a host of topics, including payment, reimbursement, stipulations as to prohibited conduct for the surrogate mother during the pregnancy, provisions establishing legal parenthood for the intended parents, and the requirement for the surrogate mother to relinquish the child upon its birth. Contractual stipulations regarding surrogacy touch upon important ethical questions of bodily autonomy, the nature of a legal family, and the potential for abusive clauses in situations of unequal bargaining power.
Section 6(5) of the AHRA allows provinces to legislate on the validity of all types of surrogacy agreements. In Quebec, Article 541 of the Civil Code states that “[a]ny agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.” This article prohibits contracts for both natural surrogacy (where a surrogate mother’s own eggs are fertilized using donated sperm) and gestational surrogacy (where both eggs and sperm are donated, and the resulting embryo is implanted in the surrogate mother’s uterus). Within the Code, absolute nullity is reserved for arrangements that, in whole or in part, violate the norms of public policy. The perceived violation aligns with ethical concerns about surrogacy (altruistic and commercial): that a vulnerable woman may be exploited into “renting” her uterus for remuneration and/or forced to give up a child that she has carried to term, and of whom she may be the biological mother. Such concerns are undoubtedly serious, and such exploitation would indeed be an affront to moral sensibilities.
However, the blanket ban on surrogacy contracts has undesirable effects on intended parents in Quebec. Not only can intended parents not recruit surrogate mothers through financial incentives, but even establishing parentage is a legally confusing process. Notwithstanding an a priori intention of all adults involved, a surrogate mother might refuse to give up the child upon birth. Such a case would likely devolve into a court proceeding, where the intended parts cannot argue persuasively – without the benefit of an agreement indicating intent – against the presumption that the birth mother is the mother of the child.
For intended parents, some of whom may find the adoption process unattractive in part due to the potential for a biological mother’s change of heart, this provision is enough to cause serious anxiety. Filiation of children conceived naturally occurs by blood and through the presumption of paternity (Article 525 CCQ), and yet even genetic relation doesn’t clinch the legal maternity of the intended mother in cases of gestational surrogacy (Article 538.1 CCQ). In cases of natural surrogacy, where the surrogate mother is the biological mother, and/or cases where sperm has been donated by someone other than the intended father, the question of parentage becomes all the more pressing.
A 2009 Cour du Québec case concerning parentage in natural surrogacy was the first legal test of Article 541 CCQ. The intended parents and the surrogate mother had agreed to leave the mother’s identification blank on the baby’s birth certificate. The biological father planned to then consent to his spouse’s adoption of the child, thus completing the act of filiation without a declaration of parentage. However, Justice Dubois concluded that although the intended parents were raising the child, and that the spouse is the de facto mother due to uninterrupted possession of status, the intended parents were attempting to circumvent the law. Rejecting the intended mother’s Request for Adoption, Justice Dubois left the maternal filiation part of the child’s birth certificate empty. The judgment noted the importance of deciding matters in favour of the interest of the child (Article 33 CCQ), but that this principle cannot negate the illegality of absolutely null agreements.
However, there is some question about whether Quebec is moving towards abandonment of its blanket ban. Four subsequent Cour du Québec cases reversed course on the 2009 decision; the court in these cases allowed the intended parents to adopt their child (Note: granting adoption is not the same as declaring parentage; though the two statuses import the same rights and responsibilities, they occupy different levels on a symbolic hierarchy). Furthermore, scholars such as Professor Alain Roy note that the “best interest of the child” principle urges abandonment of the ban, as it is unclear who is responsible for a child upon birth. This is an especially disturbing ambiguity in the case of disabled children, who, on the flipside of the conventional surrogacy horror story of the surrogate mother claiming the child, may be renounced by their intended parents.
Moreover, many other provinces in Canada have (cautiously) more permissive approaches to establishing parentage, while still not recognizing binding surrogacy contracts. Ontario, Saskatchewan and New Brunswick have not introduced specific legislation, but their courts have established parentage in favour of the intended parents by judicial order. Alberta and Nova Scotia have reformed their family law statutes to give some weight to agreements of intention and introduce a standard process for establishing parentage. British Columbia goes furthest, not even requiring judicial orders to establish parentage in most cases. The BC Family Law Act requires written agreement that the surrogate mother will surrender the child to the intended parents. After birth, a standard statement is filed, and judicial intervention will only be required if a dispute arises.
Finally, increasing popularity of “surrogacy tourism” may be another argument for Quebec to relax or modify its ban. Many couples find it easier to turn to certain parts of the United States or overseas – often developing countries with little regulation on the matter – than to deal with the stress of both finding an altruistic surrogate and not having control over the child’s parentage upon birth. It is unlikely that surrogacy tourism will ever be eliminated while commercial surrogacy remains illegal throughout Canada, as the supply of altruistic surrogate mothers (who can only be reimbursed for ancillary pregnancy expenses, at best) will always be outstripped by demand. However, if the ethical issue in surrogacy is the exploitation of vulnerable women, then discouraging surrogacy tourism by placing higher legal value on parentage agreements may be a preliminary means of harm reduction.
Short of considering parentage agreements to be binding, or even introducing streamlined administrative procedures as in BC, Quebec can take certain intermediate steps. As in all other provinces, intended parents should be able to apply for declarations of parentage – beyond adoption. In these requests for judicial orders, parentage agreements should at least be considered proof of intent. Such developments might alleviate anxiety for intended parents and lessen the province’s symbolic disapproval of a legal practice.
Please stay tuned for more information on the 2016 MJLH Colloquium: “Assisted Reproduction: Navigating the Criminalization of Commercial Surrogacy and Reacting to Unexpected Situations”.