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Why is surrogacy illegal in Quebec?

In many parts of the world, families who are unable to conceive a child are able to turn to a surrogate mother to bring a child to term. But not here in Quebec, where it’s against the law.

In Canada, laws regarding the legal status of family members—known as filiation—are set by the provinces. This means while surrogacy is legally permitted in the country, Quebec is different.

Throughout Canada, it’s illegal to pay a surrogate directly. Her medical bills and other expenses can be paid for, but a surrogate mother cannot be directly compensated for carrying another’s child. Quebec law goes further, and doesn’t recognize the rights of the biological parents of a surrogate child at all.

In this province, when a baby is born, the birth mother must be listed as the mother on the birth certificate. Any contracts that a surrogate might have signed with another family are unenforceable.

To have any legal filiation rights over a surrogate child, a family would have to go through a formal adoption process. But there’s no guarantee they would be successful.

Originally, this was done to protect a woman’s right to control her own body and to uphold her reproductive rights. But it’s had the consequence of making it difficult for gay men to have children conceived through assisted reproduction. As reported recently in Global News, women who have difficulty carrying their own children to term are forced to look outside the province for a surrogate mother, paying medical bills out of their own pocket. In the case of that family, Melanie Parnass and her husband had to pay some $50,000 to have their surrogate mother give birth in Ontario, where surrogacy is permitted.

“I shipped my embryos from Montreal to Toronto and had to pay the clinic there,” Parnass told Global. “It’s a hard process. Emotionally, you’re putting your trust in someone else.”

The laws in Quebec around surrogacy are consistent with the law’s view of paternal parentage. When a baby is born, the birth mother can designate a father if she is unmarried; if married, the husband is presumed to be the father on the birth certificate. If the designated father takes up the responsibilities of parenthood, he’s legally considered to be the father and has filiation— this is known as “possession of status.” Even if a biological father then steps forward, this cannot be broken. This is based on the idea that a parental bond is more important to the wellbeing of child than a biological one.

In 2015 the Quebec government’s Comité consultative sur le droit de la famille recommended the law be changed to allow for surrogates. But, so far, the provincial government has not changed the rules.

The law around surrogacy is a small part of filiation law, which determines who has legal rights over the upbringing of a child. Filiation governs all sorts of things, from who decides what sort of education a child receives, to who is eligible to inherit a parent’s property.

If you think you might need our help with parental authority, or any other legal matter, contact Goldwater, Dubé to see if we can help.